Arc Ecology v. U.S. Dept. of Air Force, 04-15031.

• Citation: 411 F.3d 1092
• Decision Date: 15 June 2005
• Docket Number: No. 04-15031.,04-15031.
• Parties: ARC ECOLOGY; Filipino/American Coalition for Environmental Solutions; Norma Duero; Noel Duero; Maritess Duero; Victoria N. Maniago; Maritess Balintag; Elsa E. Gonzaga; Melody O'Brien; Connie R. Domdom; Rosalina Geronimo; Alma G. Balawan; Rosalinda I. Peraan; Zenaida A. Riley; Marissa C. Navidad; Dolores C. Mose; Adriano B. Lazarte; Loita Sayat; Francisca Smith; Edya P. Warner; Jennifer Lansangan; Angelica Warner; Crispin Diala; Christina Munoz; Fernando Ferrer; Hilaria Ferrer; Emilio Ferrer; Ria Richelle Limid; Gilbert Pineda; Felipe Espinosa, Jr.; Ramil Espinosa; Mario Manialung; Betty B. Valencia; Angelina M. Liwanag; Mary Ann V. Diego; Ernesto S. Borja; Ofelia M. Dizon; Nerminda B. Sagum, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF THE AIR FORCE; United States Department of the Navy; United States Department of Defense; Donald Rumsfeld, in his capacity as United States Secretary of Defense, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

411 F.3d 1092

ARC ECOLOGY; Filipino/American Coalition for Environmental Solutions; Norma Duero; Noel Duero; Maritess Duero; Victoria N. Maniago; Maritess Balintag; Elsa E. Gonzaga; Melody O'Brien; Connie R. Domdom; Rosalina Geronimo; Alma G. Balawan; Rosalinda I. Peraan; Zenaida A. Riley; Marissa C. Navidad; Dolores C. Mose; Adriano B. Lazarte; Loita Sayat; Francisca Smith; Edya P. Warner; Jennifer Lansangan; Angelica Warner; Crispin Diala; Christina Munoz; Fernando Ferrer; Hilaria Ferrer; Emilio Ferrer; Ria Richelle Limid; Gilbert Pineda; Felipe Espinosa, Jr.; Ramil Espinosa; Mario Manialung; Betty B. Valencia; Angelina M. Liwanag; Mary Ann V. Diego; Ernesto S. Borja; Ofelia M. Dizon; Nerminda B. Sagum, Plaintiffs-Appellants,

v. UNITED STATES DEPARTMENT OF THE AIR FORCE; United States Department of the Navy; United States Department of Defense; Donald Rumsfeld, in his capacity as United States Secretary of Defense, Defendants-Appellees.

No. 04-15031.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 11, 2005.

Filed June 15, 2005.

Scott J. Allen, San Francisco, CA, for the plaintiffs-appellants.

Todd S. Kim (argued), Martin F. McDermott, and David C. Shilton (briefs), U.S. Department of Justice, Washington, DC, for the defendants-appellees.

Appeal from the United States District Court for the Northern District of California; James Ware, District Judge, Presiding. D.C. No. CV-02-05651-JW.

Before: BRIGHT,^* TASHIMA, and CALLAHAN, Circuit Judges.

CALLAHAN, Circuit Judge:

A decade after the United States vacated its occupation of Clark Air Force Base ("Clark") and Subic Naval Base ("Subic") in the Philippines, the plaintiffs-appellants ("the appellants") seek to invoke specialized statutory procedures under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601 et seq., to compel the U.S. government to perform a preliminary assessment and cleanup of the alleged contamination thereon. As citizens and residents of the Philippines, the appellants argue that CERCLA applies extraterritorially to afford them relief. The district court dismissed the appellants' complaint for failure to state a claim. We affirm because CERCLA does not provide for the extraterritorial application sought by the appellants.

I

A. Statutory and Regulatory Background

In 1980, the 96th Congress enacted CERCLA in response to the "serious environmental and health risks posed by industrial pollution." United States v. Bestfoods, 524 U.S. 51, 55, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998). As its name suggests, "`CERCLA is a comprehensive statute that grants the President broad power to command government agencies and private parties to clean up hazardous waste sites.'" Id. (quoting Key Tronic Corp. v. United States, 511 U.S. 809, 814, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994)); accord 42 U.S.C. § 9604(a). CERCLA's primary objectives are" `to ensure the prompt and effective cleanup of waste disposal sites, and to assure that parties responsible for hazardous substances [bear] the cost of remedying the conditions they created.'" Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1300 (9th Cir.1997) (quoting Mardan Corp. v. C.G.C. Music, Ltd., 804 F.2d 1454, 1455 (9th Cir.1986)).

The statute also provides for a hazard-ranking system by directing the President to publish the National Contingency Plan ("NCP"), which is a set of regulations that identifies the methods for investigating contamination and the criteria for determining appropriate cleanup actions. 42 U.S.C. § 9605. The President must list as part of the NCP "national priorities among the known releases or threatened releases throughout the United States."¹ Id. § 9605(a)(8)(B). The resulting list is known as the National Priorities List. Id.; 40 C.F.R. § 300.425(b).

Section 105(d) of CERCLA, the provision under which the appellants bring suit, provides in pertinent part that:

Any person who is, or may be, affected by a release ... may petition the President to conduct a preliminary assessment of the hazards to public health and the environment which are associated with such release.... If the President has not previously conducted a preliminary assessment of such release, the President shall, within 12 months after the receipt of any such petition, complete such assessment or provide an explanation of why the assessment is not appropriate. If the preliminary assessment indicates that the release ... may pose a threat to human health or the environment, the President shall promptly evaluate such release ... in accordance with the hazard ranking system ... to determine the national priority of such release[.]

42 U.S.C. § 9605(d).

CERCLA supplies citizens with the right to bring a claim in certain circumstances. Id. § 9659. A citizen may bring a suit against those "alleged to be in violation of any standard, regulation, condition, requirement, or order" under CERCLA. Id. § 9659(a). A citizen may also sue the United States for failing to adhere to nondiscretionary duties under CERCLA. Id.

The President generally has delegated the authority for cleanups at federal facilities to the particular federal agencies that administer the facilities. Id. § 9615 (authorizing delegation). Response authority vests in the Secretary of Defense ("Secretary") when it comes to releases on or originating from a Department of Defense installation. Exec. Order No. 12,580, § 2(d).

In conjunction with CERCLA's amendments of 1986, and premised on this delegation to the Secretary, Congress established the Defense Environmental Restoration Program ("DERP"). 10 U.S.C. §§ 2700 et seq. DERP directs the Secretary to "carry out a program of environmental restoration" at facilities under his jurisdiction, but does not establish what the program should entail. Id. § 2701(a)(1)-(2), (b). DERP, however, does make the Secretary responsible for carrying out "response actions with respect to releases of hazardous substances from ... [e]ach facility or site which was under the jurisdiction of the Secretary and ... possessed by the United States at the time of actions leading to contamination of hazardous substances." Id. § 2701(c)(1)(B).

B. Factual and Procedural Background

The United States began its operation of Clark and Subic in the early Twentieth Century when it had control of the Philippines. In 1947, after the Philippines attained independence, the United States and the Philippine government entered into an agreement that allowed the United States to continue operating Clark and Subic ("Bases Agreement"). 61 Stat. 4019, T.I.A.S. No. 1775, 1947 U.S.T. LEXIS 393 (1947). The United States maintained the bases until 1992, when it withdrew its military personnel and turned the bases over to the Philippine government.

The appellants are two non-profit environmental organizations and 36 individual Philippine residents "who live and/or travel... and/or have family members that live and/or travel on or near the Clark and/or Subic properties [.]" The defendants-appellees ("the appellees") are the Department of the Air Force, Department of the Navy, Department of Defense, and the Secretary in his official capacity. In June 2000, the appellants petitioned appellees Air Force and Navy to conduct preliminary assessments at Clark and Subic. The appellees declined, stating that "CERCLA does not apply to ... property [] located outside the territorial boundaries of the United States" and that "the Philippine government has relinquished any right to demand environmental restoration of the [] property by executing a[n] amendment to the [] Bases Agreement."

In December 2002, the appellants commenced this CERCLA citizens' suit, alleging that they have been or are likely to be exposed to contamination at Clark and Subic created during the prior American occupation of those facilities. They sought an order compelling the defendants to conduct preliminary assessments at Clark and Subic and a declaratory judgment that CERCLA applies to those bases.

The appellees responded by filing a motion to dismiss, contending, inter alia, that the complaint failed to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court granted the motion to dismiss, concluding that the relevant provisions of CERCLA do not apply extraterritorially. The court relied on the statutory presumption that "`legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.'" Arc Ecology v. United States Dep't of the Air Force, 294 F.Supp.2d 1152, 1157 (N.D.Cal.2003) (quoting EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991) ("Aramco")). The appellants timely appealed from the final judgment of dismissal. FED. R. APP. P. 4(a).

II

We review de novo a district court's interpretation and construction of a federal statute. SEC v. McCarthy, 322 F.3d 650, 654 (9th Cir.2003). De novo review also applies to a dismissal for failure to state a claim under Rule 12(b)(6). Thompson v. Davis, 295 F.3d 890, 895 (9th Cir.2002) (per curiam), cert. denied, 538 U.S. 921, 123 S.Ct. 1570, 155 L.Ed.2d 311 (2003).

With respect to a Rule 12(b)(6) dismissal, appellate review is limited to the contents of the complaint. Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir.1996). We take as true all allegations of material fact in the complaint and construe them in the light most favorable to the claimant. Thompson, 295 F.3d at 895. Dismissal of the complaint is appropriate only if it appears beyond doubt that the claimant can prove no set of facts in support of the claim which would entitle him to relief. Id. We may, however, affirm the district court's dismissal for failure to state a claim on any basis supported in the record. Ove v. Gwinn, 264 F.3d 817, 821 (9th Cir.2001); Romano v. Bible, 169 F.3d 1182, 1185 (9th Cir.1999).

A. CERCLA's Application to Clark and Subic

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