Berrey v. Asarco Inc.

• Decision Date: 22 February 2006
• Docket Number: No. 04-5131.,04-5131.
• Citation: Berrey v. Asarco Inc., 439 F.3d 636 (10th Cir. 2006)
• Parties: John L. BERREY, Chairman; Colleen Wilson Austin; Edwina Faye Busby; Reberta Hallam Kyser; Florence Mathews; Ardina Revard Moore; Jean Ann Lambert; Edward Rodgers, individually and on behalf of all other members of the Quapaw Tribe of Oklahoma similarly situated, Plaintiffs, and The Quapaw Tribe of Oklahoma (O-Gah-Pah), Plaintiff-Counter-Defendant-Appellant, v. ASARCO INCORPORATED, Sued as: Asarco, Inc.; Childress Royalty Company, sued as: Childress Royalty Comp., Inc.; Doe Run Resources Corporation, sued as: The Doe Run Resources Corp.; Eagle-Picher Industries, Inc.; NL Industries, Inc.; United States of America; Gale Norton, United States Department of Interior; Putative Class Members; Billye D. Albright; James E. Gilmore; Beatrice A. Griffin; Emma Lou Griffin; July Griffin Pebeahsy; Buddy L. Richards; Fred L. Richards; Yaunak Stephenson; John Doe, sued as: John & Jane Does 1-300; Jane Doe, sued as: Jane Does 1-300; Cynthia D. Holi Blanchard; Jeb Dehanas; Patricia Ann Gillenwater; Linda L. Holiday; Sarah D. Justice; Betty Lee McDonald; Myron Mountford; Donna Rae Reeves; Jacqueline Ce Stillwell; George Valliere; Judy Garner Vanderflute; Betty J. Weithoner; Mary Lou Works; John Doe, sued as John and Jane Does 301-600 (Landowners); Jane Doe, sued as John and Jane Does 301-600 (Landowners), Defendants, and Blue Tee Corporation, sued as: Blue Tee Corp.; Gold Fields Mining Corporation, LLC, sued as: Gold Fields Mining Corp., Defendants-Counter-Claimants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

439 F.3d 636

John L. BERREY, Chairman; Colleen Wilson Austin; Edwina Faye Busby; Reberta Hallam Kyser; Florence Mathews; Ardina Revard Moore; Jean Ann Lambert; Edward Rodgers, individually and on behalf of all other members of the Quapaw Tribe of Oklahoma similarly situated, Plaintiffs, and The Quapaw Tribe of Oklahoma (O-Gah-Pah), Plaintiff-Counter-Defendant-Appellant, v.ASARCO INCORPORATED, Sued as: Asarco, Inc.; Childress Royalty Company, sued as: Childress Royalty Comp., Inc.; Doe Run Resources Corporation, sued as: The Doe Run Resources Corp.; Eagle-Picher Industries, Inc.; NL Industries, Inc.; United States of America; Gale Norton, United States Department of Interior; Putative Class Members; Billye D. Albright; James E. Gilmore; Beatrice A. Griffin; Emma Lou Griffin; July Griffin Pebeahsy; Buddy L. Richards; Fred L. Richards; Yaunak Stephenson; John Doe, sued as: John & Jane Does 1-300; Jane Doe, sued as: Jane Does 1-300; Cynthia D. Holi Blanchard; Jeb Dehanas; Patricia Ann Gillenwater; Linda L. Holiday; Sarah D. Justice; Betty Lee McDonald; Myron Mountford; Donna Rae Reeves; Jacqueline Ce Stillwell; George Valliere; Judy Garner Vanderflute; Betty J. Weithoner; Mary Lou Works; John Doe, sued as John and Jane Does 301-600 (Landowners); Jane Doe, sued as John and Jane Does 301-600 (Landowners), Defendants,andBlue Tee Corporation, sued as: Blue Tee Corp.; Gold Fields Mining Corporation, LLC, sued as: Gold Fields Mining Corp., Defendants-Counter-Claimants-Appellees.

No. 04-5131.

United States Court of Appeals, Tenth Circuit.

February 22, 2006.

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Stephen R. Ward (Shelley L. Carter, with him on the briefs), Conner & Winters, LLP, Tulsa, OK, for Plaintiff-Counter-Defendant-Appellant.

Stanley D. Davis, Shook, Hardy & Bacon, LLP, Kansas City, MO (Kirk F. Marty, Rebecca J. Schwartz, Barbara M. Smith, Shook, Hardy & Bacon, LLP, Kansas City, MO; Robert J. Joyce, Joyce, Paul & McDaniel, P.C., Tulsa, OK, with him on the brief), for Defendants-Counter-Claimants-Appellees.

Before HENRY, McWILLIAMS and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I.Introduction

Plaintiff-Appellant Quapaw Tribe brought suit against Defendants-AppelleesBlue Tee Corporation and Gold Fields Mining, alleging Defendants and their predecessors in interest caused environmental contamination on Quapaw lands as a result of their mining activities in the 1900s.Defendants asserted counterclaims for contribution and indemnity.The Tribe filed a motion to dismissDefendants' counterclaims, arguing they were barred by tribal sovereign immunity.The district court denied the motion.It concluded the Tribe had waived its immunity as to Defendants' counterclaims, which sounded in recoupment, by filing suit.The Tribe appealed.We have jurisdiction pursuant to 28 U.S.C. § 1291.SeeOsage Tribal Council v. United States Dep't of Labor,187 F.3d 1174, 1179(10th Cir.1999).Because a tribe waives its sovereign immunity as to counterclaims sounding in recoupment by filing suit, and Defendants' counterclaims for common law contribution and indemnity are claims in recoupment, weaffirm.

II.Background

The issue on appeal is the propriety of an order denying a motion to dismissDefendants' counterclaims.We thus recite the facts largely as alleged in the counterclaims.The United States allotted to the Quapaw lands located in the far northeastern corner of Oklahoma along Tar Creek.Lead and zinc ores were discovered in the area in the late 1800s and a period of extensive mining began.The Tribe and the United States Department of Interior("DOI") negotiated mining leases with various companies, including Defendants' predecessors in interest.Many of the mining leases required debris from mining processes, known as chat, to be deposited in piles where it became the property of the landowner.The Tribe profited from the sale of this chat for use as road base, surface material, and railroad ballast in the Tar Creek region and elsewhere.Mining ended in the 1970s, and in 1983, the Tar Creek Superfund Site was placed on the National Priorities List.Among the environmental hazards alleged to exist at the site are contaminated water runoff from chat piles and former floatation ponds, acid mine drainage, subsidence of the ground, air pollution, erosion, and migration of contaminated water and sediment into downstream rivers and lakes.

The Quapaw Tribe owns in fee approximately eighty acres of the Tar Creek Superfund Site and has an undivided fifty-one percent interest in an additional forty acres.To initiate a cleanup of the site, the Tribe and several individual Tribe members brought suit against former mine owners and operators and their successors in interest.¹The Tribe asserted claims of public and private nuisance, trespass, unjust enrichment, strict liability, and deceit by false representations, nondisclosure, and/or concealment.Subsequently, the Tribe amended its complaint to add claims under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9607, and the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6924,6972, and for administrative action in violation of law.

Defendants filed counterclaims for common law contribution and indemnity, and contribution under CERCLA.The Tribe filed a motion to dismissDefendants' counterclaims, arguing they were barred by tribal sovereign immunity.The district court denied the motion and a subsequent motion to reconsider, concluding the Tribe waived its sovereign immunity as to claims in recoupment by suing Defendants.Moreover, the district court determined Defendants' counterclaims are claims in recoupment under the test established in FDIC v. Hulsey,22 F.3d 1472, 1487(10th Cir.1994).

III.Discussion

A.Jurisdiction

As an initial matter, Defendants argue the Tribe's appeal is jurisdictionally barred for failure to file a timely notice of appeal.The Federal Rules of Appellate Procedure require a notice of appeal to be filed "within 30 days after the judgment or order appealed from is entered," except when the United States is a party.Fed. R.App. P. 4(a)(1).The district court denied the Tribe's motion to dismiss on May 18, 2004.The Tribe's motion to reconsider was denied on June 21, 2004.The Tribe filed an untimely notice of appeal on August 27, 2004.Prior to this filing, however, the Tribe filed a motion to certifythe district court's order denying dismissal.²The motion to certify was filed on July 21, 2004, the thirtieth day after the district court entered its order denying reconsideration.³A footnote in the motion stated

[s]hould this Court determine that the Tribe's appeal is by right under the Collateral Order doctrine, the Tribe requests that the Court and the parties treat this motion as a notice of appeal, and advise the Tribe and Defendants of their obligation to proceed before the Circuit Court, tolling all filing requirements until such order is made.This motion is filed within the thirty day period for taking appeal, and therefore notice of appeal is timely if the Court determines that the Collateral Order doctrine applies.

ROA, Vol. IIat 619.The Tribe argues its motion to certify is the functional equivalent of a notice of appeal.

"An appeal must not be dismissed for informality of form or title of the notice of appeal."Fed. R.App. P. 3(c)(4).A filing that is "technically at variance with the letter of [Rule 3]" satisfies the rule if it is the "functional equivalent of what the rule requires."Smith v. Barry,502 U.S. 244, 248, 112 S.Ct. 678, 116 L.Ed.2d 678(1992)(quotation omitted).A document is the functional equivalent of a notice of appeal if it contains the three elements of notice required by Rule 3(c).SeeUnited States v. Smith,182 F.3d 733, 735(10th Cir.1999).Rule 3(c) requires that a notice of appeal specify (1)the party taking the appeal, (2) the order being appealed, and (3) the name of the court to which the appeal is taken.Fed. R.App. P. 3(c)(1).The purpose of Rule 3(c)'s requirements is to provide all parties and the court with sufficient notice of a litigant's intent to seek appellate review.Barry,502 U.S. at 248, 112 S.Ct. 678.

The Tribe's motion to certify met all the requirements of Rule 3(c) and put Defendants and the district court on notice of its intent to appeal.The Tribe's motion stated the Tribe was seeking certification to the Tenth Circuit Court of Appeals to appeal the district court's order denying dismissal based on tribal sovereign immunity.The motion also provided that if certification was unnecessary because of the collateral order doctrine, the motion to certify was to be treated as a notice of appeal.Because the Tribe's motion to certify is the functional equivalent of a notice of appeal and was timely pursuant to Fed. R.App. P. 4(a)(1), we have jurisdiction to consider the merits of the Tribe's appeal.⁴

B.Tribal Sovereign Immunity

The Tribe argues Defendants' counterclaims are barred by tribal sovereign immunity.Specifically, the Tribe contends the doctrine of equitable recoupment does not permit claims against a tribe, like the Quapaw Tribe, that has not waived its immunity from suit by legislative enactment.Questions of tribal sovereign immunity are reviewed de novo.E.F.W. v. St. Stephen's Indian High Sch.,264 F.3d 1297, 1303(10th Cir.2001).

It is well established that Indian tribes possess the common-law immunity from suit traditionally enjoyed by sovereign powers.Santa Clara Pueblo v. Martinez,436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106(1978).This immunity includes exemption from suit without congressional authorization or waiver by the tribe.Jicarilla Apache Tribe v. Andrus,687 F.2d 1324, 1344(10th Cir.1982).Generally, tribal sovereign immunity is deemed to be coextensive with the immunity of the United States.Ramey Constr. Co., Inc. v. Apache Tribe of Mescalero Reservation...