Coeur D'Alene Tribe v. Asarco Inc., CV 91-0342-N-EJL.

CourtUnited States District Courts. 9th Circuit. District of Idaho
Citation280 F.Supp.2d 1094
Docket NumberNo. CV 91-0342-N-EJL.,CV 91-0342-N-EJL.
PartiesCOEUR D'ALENE TRIBE, Plaintiff, v. ASARCO INCORPORATED; Government Gulch Mining Company, Inc.; Federal Mining and Smelting Co., Inc.; Hecla Mining Company, Inc.; Sunshine Mining Company, Inc.; Sunshine Precious Metals, Inc.; and Union Pacific Railroad Company, Defendants. United States of America, Plaintiff, v. ASARCO Incorporated, et al., Defendants.
Decision Date03 September 2003

Howard A. Funke, Raymond C. Givens, Givens & Funke, Coeur d'Alene, ID, for Plaintiff/counter-defendant.

John W. Phillips, Michael R. Thorp, Heller, Ehrman, White & McAuliffe, Seattle, WA, Anthony R. Picarello, Jr., Covington & Burling, Washington, DC, M. Michael Sasser, Sasser & Inglis, Albert P. Barker, Barker, Rosholt & Simpson, Bruce C. Jones, Spencer M. Reese, Evans Keane, Boise, ID, Elizabeth H. Temkin, Kristin Tita, Temkin, Wielga & Hardt, William A. Hillhouse, II, Robert F. Copple, Stephanie C. Stimpson, Parcel, Maro, Hultin & Spaanstra, Robert W. LAwrence, Davis, Graham & Stubbs, Denver, CO, Fred M. Gibler, Charles L.A. Cox, Evans, Koontz, Boyd, Simko & Ripley, Kellogg, ID, William F. Boyd, Coeur d'Alene, ID, Larry A. Gantenbein, Morris O' Haggerty, Union Pacific Railroad, Salt Lake City, UT, Thomas E. Greenland, Union Pacific Railroad Co., Omaha, NE, for Defendants.


LODGE, District Judge.

A. Nature of Case

While there is ample room for disagreement on the facts and the law as it is to be applied to this case, it is undisputed that this case is unique in its size, its history and its complexity. The case is of great importance and calls for the exercise of the greatest care and caution in its consideration, a task that is very difficult when expert witnesses with impeccable qualifications reached opposite conclusions on almost every issue. In McCarthy v. Bunker Hill & Sullivan Mining & Concentrating Co., 164 F. 927 (9th Cir.1908), cert. denied, 212 U.S. 583, 29 S.Ct. 692, 53 L.Ed. 660 (1909),1 a case heard by the Ninth Circuit in 1908, concerning the issues that were in their infancy on matters pertaining to this very case, the Court commented on the fact that "the briefs also disclosed intense feelings on the part of opposing counsel, which, perhaps is not unnatural in view of all the circumstances of the case and of the large interests involved." Id. at 939. It is this Court's opinion that in this regard, nothing has changed.

The Court allowed the parties sufficient time after the taking of the evidence to negotiate settlements. The Tribe and Asarco reached a settlement. No other settlements were reached. The Court is now prepared to rule on the evidence and law.

After listening to approximately 100 witnesses, 78 days of trial and having reviewed 8,695 exhibits and over 16,000 pages of testimony, it is the judgment of this Court that while CERCLA was enacted to protect and preserve public health and the environment by facilitating the expeditious and efficient cleanup of hazardous waste sites, the conditions in the Coeur d'Alene Basin have and are improving through the joint efforts of the EPA, the Tribe, the State of Idaho, the private sector (including the land owners) and through the natural recovery of mother nature. The liability of certain responsible parties including Hecla and Asarco is evident, but the Defendants are correct when they argue that there has been an exaggerated overstatement by the Federal Government and the Tribe of the conditions that exist and the source of the alleged injury to natural resources.

To put this case in proper perspective, one has to review the history of over 100 years of mining in the Coeur d'Alene Basin, what efforts were made to deal with the problems as they became evident, what direction the Courts and the State of Idaho legislature gave to interested parties, what contribution, if any, the Federal Government and Tribe made to the conditions, how urbanization, forest fires and floods also impacted the environment, how settlements between certain parties may have changed the landscape and what are the observations and experiences of the people who live in the Coeur d'Alene Basin today.

The industrial revolution has given way to the environmental revolution. In the 1960s, this country began to recognize the importance of taking steps to protect the environment and to curtail or limit the impact of mining for metals necessary for society. It is undisputed that the mining companies in the Silver Valley were impounding their mine tailings by 1968. CERCLA was passed in 1980 and seeks to hold the mining companies liable for many acts that were taken prior to the existence of the statute. The mining companies have attempted to comply with the applicable environmental regulations to minimize the impact of mining. Testimony establishes that Defendants Asarco and Hecla followed the evolving commonly accepted mining practices of the day and even took steps beyond what was required to limit the impact to the environment. Many of these steps were approved by the trial and appellate courts.2 The economic livelihood provided by mining in the Silver Valley cannot be ignored when considering the legal issues before the Court. Mining provided jobs and materials needed both in times of peace and war.

This Court is charged with upholding the laws of this country. In meeting this charge, the Court must look to the language of the statute and the interpretations by other courts. In the case of CERCLA, the Court's finds its hands are often tied and "justice" is dictated by the statutes passed by politicians who at the time could not have imagined the factual scenario pending before this Court. CERCLA has the well-intended purpose of protecting the health and well being of the environment and its inhabitants. But by the time CERCLA was passed, much of the damage to the environment due to mining in the Coeur d'Alene Basin had already been set in motion and could not be reversed by the passage of a comprehensive environmental statute. CERCLA is to be liberally construed to achieve its goals, but "we must reject a construction that the statute on its face does not permit and the legislative history does not support." Carson Harbor Village v. Unocal Corp., 270 F.3d 863, 881 (9th Cir.2001), (en banc), cert. denied, 535 U.S. 971, 122 S.Ct. 1437, 152 L.Ed.2d 381 (2002), (citing 3550 Stevens Creek Assocs. v. Barclays Bank, 915 F.2d 1355, 1363 (9th Cir.1990)). Justice and fairness is what is required in this complex case. The Court will apply both these qualities in considering the applicable statutes and the relevant facts.

B. Plaintiffs' Claims

Plaintiff United States seeks to recover from the Defendants for response costs, natural resource damages under CERCLA and for natural resource damages pursuant to the Clean Water Act ("CWA"). The Tribe seeks to recover from the Defendants for natural resource damages under CERCLA.3 The Court will set forth the elements which must be established by a preponderance of the evidence for the Plaintiffs to prevail on each claim.

The elements of a response costs claim under CERCLA:4

A. each mining-related property owned and operated by a defendant is a "facility;"

B. a "release" or "threatened release" of a "hazardous substance" from the facility has occurred;

3) the release or threatened release has caused the United States to incur response costs; and

1. Defendants fall within at least one of the four classes of responsible parties described in § 9607(a).5

The elements of a natural resource damages claim under CERCLA:6

1. each mining-related property owned and operated by a defendant is a "facility;"

2) a "release" or "threatened release" of a "hazardous substance" from the facility has occurred;

3) Defendants fall within at least one of the four classes of responsible parties described in § 9607(a);

4) natural resources7 within the trusteeship of the Plaintiffs have been injured; and 5) that the injury to natural resources "resulted from" a release of a hazardous substance.

The elements for a claim under the Clean Water Act:8

A. there was a discharge of a hazardous substance;

B. from an onshore facility owned or operated by the Defendants;

C. into or upon the navigable waters of the United States; and

D. that natural resources have been damaged or destroyed as a result of the discharge.

C. Defendants' Claims

Defendants do not dispute that tailings were released into the environment as a result of mining in the Coeur d'Alene Basin. Defendants disagree with the percentage of liability Plaintiffs seek to hold each defendant responsible for and argue that other causes outside their control have negatively impacted the environment. Defendants also seek to hold the United States liable for contributing to hazardous substance releases. Defendants also disagree with the Plaintiffs' claims of "injury" to natural resources and claim instead the environment is better off now as compared to the study in the 1930s and the environment is naturally repairing itself. Finally, even if liability is established, Defendants maintain application of CERCLA is unconstitutional.


Since this was a bench trial involving primarily battling experts, it is up to the Court to weigh the evidence presented and to attempt to ascertain the truth. Based upon the evidence contained in the record and presented at the trial, the Court finds that the facts are as follows. To the extent the Court has concluded that the evidence in the record does not support certain assertions, allegations or claims made, they will not be included in the Court's finding or otherwise referenced herein. The failure to mention an act, event or series of events in these findings is an indication that the evidence submitted to the Court does not...

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