Burlington Northern and Santa Fe Ry. Co. v. Grant

• Decision Date: 24 September 2007
• Docket Number: No. 05-5137.,No. 04-5182.,No. 04-5190.,04-5182.,04-5190.,05-5137.
• Citation: 505 F.3d 1013
• Parties: The BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, Plaintiff-Appellant and Cross-Appellee, v. Charles B. GRANT; Charles B. Grant Revocable Trust, Defendants-Appellees and Cross-Appellants, and State of Oklahoma; Oklahoma Department of Environmental Quality; Oklahoma Department of Agriculture, Food and Forestry, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

505 F.3d 1013

The BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, Plaintiff-Appellant and Cross-Appellee, v. Charles B. GRANT; Charles B. Grant Revocable Trust, Defendants-Appellees and Cross-Appellants, and State of Oklahoma; Oklahoma Department of Environmental Quality; Oklahoma Department of Agriculture, Food and Forestry, Amici Curiae.

No. 04-5182.

No. 04-5190.

No. 05-5137.

United States Court of Appeals, Tenth Circuit.

September 24, 2007.

Alok Ahuja, Lathrop & Gage, L.C., Kansas City, MO, (Hugh D. Rice, Rainey, Ross, Rice & Binns, PLLC, Oklahoma City, OK, and David E. Cowen, McLeod, Alexander, Powel & Apffel, Galveston, TX, with him on the briefs), for Plaintiff-Appellant and Cross-Appellee.

Linda C. Martin, (Sam P. Daniel and Young H. Pei with her on the briefs), Doerner, Saunders, Daniel and Anderson, L.L.P., Tulsa, OK, for Defendants-Appellees and Cross-Appellants.

John Trevor Hammons, Assistant Attorney General, Environmental Protection Unit, Oklahoma City, OK, filed an amicus brief on behalf of the State of Oklahoma, the Oklahoma Department of Environmental Quality, and the Oklahoma Department of Agriculture, Food and Forestry, Amici Curiae.

Before HENRY and BRISCOE, Circuit Judges, and ROBINSON, District Judge.^*

BRISCOE, Circuit Judge.

Plaintiff Burlington Northern & Santa Fe Railway Co. (BNSF) appeals (Case No. 04-5182) the final judgment of the district court and additional interlocutory orders preceding final judgment. BNSF also appeals an order directing it to pay Defendants Charles Grant and the Charles Grant Revocable Trust (Grant) attorney fees (Case No. 04-5190).¹ Grant, in turn cross-appeals the dismissal of his spoliation defense (Case No. 05-5137).

We exercise jurisdiction pursuant to 28 U.S.C. § 1291. In case numbers 04-5182 and 04-5190, we REVERSE and REMAND for further proceedings. In case number 05-5137, we AFFIRM.

I

A. Factual Background

This dispute centers around a tar-like material (TLM) that BNSF alleges moved onto its property from adjacent property owned by Grant. The property BNSF and Grant now own was once the location of an oil refinery which operated from 1917 until 1932. TLM was a waste by-product of the refinery's operation.

BNSF's property is located immediately east, and allegedly downhill, from Grant's property. BNSF alleges that in the early 1970s Grant personally directed, or had reason to know of, substantial earth moving and construction on his property which BNSF alleges precipitated the migration of TLM onto its property. BNSF contends the migration of TLM has continued over a period of decades as a result of repeated heat expansion occurring each summer. BNSF investigated the TLM and methods for removing it from its property and undertook the removal and off-site disposal of the material in July 2001, expending a total of $469,000 on this project. BNSF also constructed a 2-3 foot berm on the property line to stop the alleged continued migration of TLM onto its property.

B. Procedural Background

BNSF brought suit against Grant seeking damages and injunctive relief asserting various legal theories, including claims under the citizen-suit provision of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6972. BNSF also alleged the TLM was a public and private nuisance, and sought injunctive relief against Grant in the form of abatement, and damages for unjust enrichment as a result of BNSF's cleanup activities.

The district court granted summary judgment in favor of Grant on several of BNSF's claims. First, it found that BNSF had failed to present a genuine issue of material fact on the "imminent and substantial endangerment" element of its RCRA claim. 42 U.S.C. § 6972(a)(1)(B). Next, the district court concluded that BNSF could not proceed under Okla. Stat. tit. 27A, § 2-6-105(A), an Oklahoma public nuisance statute, because the Oklahoma Department of Environmental Quality (ODEQ) had not issued a prior clean-up order. Third, the district court held that BNSF failed to present a triable issue to obtain injunctive relief on its abatement claim because there was no present TLM migration, and because the court excluded as unreliable the testimony of BNSF's expert regarding the likelihood of future migration.

BNSF proceeded to trial on its private nuisance and unjust enrichment claims. At the close of BNSF's case-in-chief, the district court entered judgment as a matter of law for Grant on all remaining claims. Specifically, the district court held that Grant's role in the construction activities of the 1970s did not subject him to personal liability because he was protected by the corporate shield. The district court also held that Grant could not be held personally liable as a successor landowner because BNSF never demanded that Grant abate the alleged TLM migration. As for BNSF's claim of unjust enrichment, the district court held that BNSF failed to establish that it had discharged an affirmative duty for which Grant was responsible.

Alternatively, the district court dismissed all of BNSF's remaining claims on the ground that it had failed to set forth evidence of its damages. Specifically, the district court entered judgment as a matter of law in favor of Grant because it found that BNSF failed to prove the diminution in value that its property suffered as the result of the alleged TLM migration. Further, the district court held that BNSF's proof of damages was deficient because it failed to identify what costs it had expended within the applicable statute of limitations.

The district court also made various evidentiary rulings which limited the evidence BNSF could introduce at trial. Specifically, the district court excluded the expert opinion of BNSF's expert Robert Brownlee (Brownlee), who would testify that TLM migrated from Grant's property onto BNSF's property. The district court also excluded various photographs and visual descriptions which BNSF proffered to address the alleged TLM migration. Finally, after the entry of judgment as a matter of law, the district court awarded Grant $411,218.99 in attorney fees.

II

BNSF appeals the district court's grant of summary judgment on its RCRA, abatement and public nuisance claims. BNSF also appeals the district court's judgment as a matter of law on its private nuisance and unjust enrichment claims, several of the district court's evidentiary rulings, and the district court's order awarding Grant attorney fees. Grant, in turn, cross-appeals the district court's dismissal of its spoliation claim.

A. Summary Judgment

We review the district court's grant of summary judgment de novo, viewing the evidence in the light most favorable to the non-moving party. See Roberts v. Printup, 422 F.3d 1211, 1214 (10th Cir.2005). Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

1. RCRA

BNSF sought relief under RCRA, a comprehensive environmental statute designed to make certain that solid and hazardous wastes are not disposed of in a manner harmful to the public health or the environment. See 42 U.S.C. § 6902(a). To meet these objectives, RCRA regulates the generation, handling, treatment, storage, transportation, and disposal of solid and hazardous wastes. See 42 U.S.C. §§ 6922-25. To ensure enforcement of these provisions, Congress conferred enforcement power upon affected United States citizens. RCRA's citizen-suit provision, 42 U.S.C. § 6972(a), provides:

[e]xcept as provided in subsection (b) or (c) of this section, any person may commence a civil action on his own behalf —

[1](B) against any person, including the United States and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution, and including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment[.]

42 U.S.C. § 6972(a)(1)(B) (emphasis added).

Section 6972(a)(1)(B), requires: (1) the defendant must be a person, including, though not limited to, one who was or is a generator or transporter of solid or hazardous waste, or one who was or is an owner or operator of a solid or hazardous waste treatment, storage, or disposal facility; (2) that this defendant contributed to, or is contributing to, the handling, storage, treatment, transportation, or disposal of solid or hazardous waste; and (3) that such waste may present an imminent and substantial endangerment to health or the environment. See, e.g., Cox v. City of Dallas, Tex., 256 F.3d 281, 292-93 (5th Cir. 2001).

In this case, our focus is upon the "may present an imminent and substantial endangerment to health or the environment" language of § 6972(a)(1)(B). As a threshold matter, it is well established that the operative word in § 6972(a)(1)(B) is "may"; thus, BNSF must demonstrate TLM "may present" such a danger. See Interfaith Community Organization v. Honeywell Int'l, Inc., 399 F.3d 248, 258 (3d Cir.2005); Cox, 256 F.3d at 299; Dague v. City of Burlington, 935 F.2d 1343, 1355 (2d Cir. 1991), rev'd in part on other grounds, 502 U.S. 1071, 112 S.Ct. 964, 117 L.Ed.2d 130 (1992). This "expansive language" is "`intended to confer upon the courts the authority to grant affirmative equitable relief to the extent necessary to eliminate any risk posed by toxic wastes.'" Dague, 935 F.2d at 1355 (quoting United States v. Price, 688 F.2d 204, 213-14 (3d Cir.1982)) (emphasis in original).

The Supreme Court has also held that the...