Colo. Dep't of Pub. Health v. United States, Civil Action No. 17-cv-02223-RM-SKC

CourtUnited States District Courts. 10th Circuit. United States District Court of Colorado
Writing for the CourtRAYMOND P. MOORE, United States District Judge
Citation381 F.Supp.3d 1300
Parties COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT, HAZARDOUS MATERIALS AND WASTE MANAGEMENT DIVISION, Plaintiff, v. UNITED STATES of America, United States Department of the Army, United States Fish and Wildlife Service, and Shell Oil Company, Defendants.
Decision Date13 March 2019
Docket NumberCivil Action No. 17-cv-02223-RM-SKC

381 F.Supp.3d 1300

COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT, HAZARDOUS MATERIALS AND WASTE MANAGEMENT DIVISION, Plaintiff,
v.
UNITED STATES of America, United States Department of the Army, United States Fish and Wildlife Service, and Shell Oil Company, Defendants.

Civil Action No. 17-cv-02223-RM-SKC

United States District Court, D. Colorado.

Signed March 13, 2019


381 F.Supp.3d 1303

David Edward Banas, Lukas Bennett Staks, Colorado Attorney General's Office-Department of Law, Denver, CO, for Plaintiff.

David A. Carson, U.S. Department of Justice-ENRS Environment & Natural Resources Section, Denver, CO, Nessa Elise Horewitch Coppinger, Beveridge & Diamond, P.C., Washington, DC, Robert Seth Brager, Beveridge & Diamond, P.C., Baltimore, MD, for Defendants.

ORDER

RAYMOND P. MOORE, United States District Judge

This case concerns hazardous waste at the Rocky Mountain Arsenal, which is federally-owned land. Plaintiff's complaint alleges two claims implicating state and federal environmental laws. The matter is before the Court on the Recommendation of United States Magistrate Judge (the "Recommendation") (ECF No. 42). The Recommendation addresses two separate motions to dismiss—one by Defendant Shell Oil Company (ECF No. 12) and the other by the "Federal Defendants," which consists of the United States of America, United States Department of the Army, and the United States Fish and Wildlife Service (ECF No. 37). The Recommendation concluded that each motion be granted in part and denied in part. (ECF No. 42 at 37-38.) Plaintiff, Shell, and Federal Defendants each filed objections to the Recommendation. (ECF Nos. 45, 46, 47.) Federal Defendants responded to Plaintiff's objections. (ECF No. 48.) Plaintiff responded to Federal Defendants' and Shell's objections. (ECF Nos. 49, 50.)

For the reasons stated below, the Court SUSTAINS IN PART Plaintiff's objections, OVERRULES Shell's objections, OVERRULES IN PART and SUSTAINS IN PART Federal Defendants' objections, and AFFIRMS IN PART and REJECTS IN PART the Recommendation as provided herein. Shell's motion to dismiss is denied as to Plaintiff's first claim and granted as to Plaintiff's second claim. Federal

381 F.Supp.3d 1304

Defendants' motion to dismiss is denied as to Plaintiff's first claim and granted as to Plaintiff's second claim as untimely to the extent it is based on failing to comply with the provisions of CERCLA 120(h) and otherwise as barred by sovereign immunity as to non-CERCLA bases.

I. LEGAL STANDARDS

A. Review of the Magistrate Judge's Recommendation

When a magistrate judge issues a recommendation on a dispositive matter, Fed. R. Civ. P. 72(b)(3) requires that the district court judge "determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to." "[T]he district court judge may accept, reject, or modify the recommendation; receive further evidence; or return the matter to the magistrate judge with instructions." Id.

An objection is proper if it is filed timely in accordance with the Federal Rules of Civil Procedure and specific enough to enable the "district judge to focus attention on those issues – factual and legal – that are at the heart of the parties' dispute." United States v. One Parcel of Real Property , 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn , 474 U.S. 140, 147, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ). In the absence of a timely and specific objection, "the district court may review a magistrate's report under any standard it deems appropriate." Summers v. Utah , 927 F.2d 1165, 1167 (10th Cir. 1991) (citations omitted); see also Fed. R. Civ. P. 72 Advisory Committee's Note ("When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.").

B. Rule 12(b)(1) Motion to Dismiss

On a motion to dismiss pursuant to Rule 12(b)(1), the court tests whether it has subject matter jurisdiction to properly hear the case before it. The party invoking the court's jurisdiction bears the burden to establish that federal jurisdiction exists, and "since the courts of the United States are courts of limited jurisdiction, there is a presumption against its existence." Basso v. Utah Power & Light Co. , 495 F.2d 906, 909 (10th Cir. 1974).

Rule 12(b)(1) motions generally take two forms. The first form is a facial attack that challenges the sufficiency of the complaint's allegations as to subject matter jurisdiction. Holt v. United States , 46 F.3d 1000, 1002 (10th Cir. 1995). The court accepts the allegations in the complaint as true when reviewing a facial attack. Id.

The second form is a factual attack that goes beyond the allegations in the complaint and challenges the facts on which subject matter jurisdiction is based. Id. at 1003. Unlike a facial attack, the court does not presume the truthfulness of the complaint's factual allegations when reviewing a factual attack. Id. "A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)." Id. (citation omitted). And "a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion[,]" unless the jurisdictional issue is intertwined with the merits of a plaintiff's case. Id. "The jurisdictional question is intertwined with the merits of the case if subject matter jurisdiction is dependent on the same statute which provides the substantive claim in the case." Id.

381 F.Supp.3d 1305

C. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim

The purpose of a motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is to test "the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley v. McCormick , 40 F.3d 337, 340 (10th Cir. 1994). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Sutton v. Utah State Sch. for the Deaf & Blind , 173 F.3d 1226, 1236 (10th Cir. 1999) (internal quotation marks and citation omitted).

To survive a Rule 12(b)(6) motion, "[t]he complaint must plead sufficient facts ... to provide ‘plausible grounds that discovery will reveal evidence to support the plaintiff's allegations." Shero v. City of Grove, Okl. , 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Plausibility in this context "must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible." Robbins v. Oklahoma , 519 F.3d 1242, 1247-48 (10th Cir. 2008) (internal quotation marks and citation omitted). The "allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief." Id. This requirement of plausibility "serves not only to weed out claims that do not have a reasonable prospect of success, [but also to] provide fair notice to defendants of the actual grounds of the claim against them." Id. at 1248 ; accord Twombly , 550 U.S. at 582, 127 S.Ct. 1955.

"A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks and citation omitted).

II. FACTUAL AND PROCEDURAL HISTORY

The parties do not object to the factual or procedural background discussed in the Recommendation. Accordingly, the Court adopts and incorporates the factual and procedural background included within the Recommendation as if set forth herein. To put the Court's analysis in context, a brief overview follows.

The Rocky Mountain Arsenal is a hazardous waste treatment, storage, and disposal facility located near Commerce City, Colorado. The United States government has owned the facility since 1942 with the Army operating it from that time until the mid-1980's. Being one of the nation's most contaminated sites, a CERCLA interim response action was initiated in 1988 to remediate the contamination. Basin F of the facility was certified closed on August 24, 2010. Plaintiff's claims are twofold: (1) that defendants have failed to obtain a post-closure permit (or substitute document) as required by 6 Colo. Code Regs. § 1007-3:100.10 —the Colorado Hazardous Waste Act ("CHWA"); and (2) that defendants transferred a parcel of Arsenal land outside the federal government (to Commerce City, Colorado) in violation of various agreements and laws. Plaintiff's second claim relies on the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et...

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    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • November 20, 2020
    ...support of this theory, he cites to Colorado Dep't of Pub. Health & Env't, Hazardous Materials & Waste Mgmt. Div. v. United States , 381 F. Supp. 3d 1300, 1311 (D. Colo. 2019), where the court found Oklahoma Gas inapplicable because "[p]laintiff's claim alleges a failure to act," and becaus......
  • Carrington Mortg. Servs., LLC v. Tapestry At Town Ctr. Homeowners Ass'n, Case No. 2:17-cv-01047-RFB-PAL
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    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
    • March 31, 2019
    ...a question of fact for trial.c. HOA's Motion for Summary JudgmentThe HOA's motion for summary judgment is based on arguments regarding 381 F.Supp.3d 1300 facial constitutionality, tender, commercial reasonableness, and the Supremacy Clause. The Court incorporates by reference its reasoning ......
  • Bd. of Cnty. Comm'rs of the Cnty. of La Plata v. Colo. Dep't of Pub. Health & Env’t, Court of Appeals No. 18CA1551
    • United States
    • Colorado Court of Appeals of Colorado
    • March 26, 2020
    ...as a result of an oil spill or release of hazardous substances. See, e.g. , Colo. Dep't of Public Health & Env't v. United States , 381 F. Supp. 3d 1300, 1305 (D. Colo. 2019) ; Complaint at ¶ 5, United States v. Suncor Energy USA Inc. , 2013 WL 6042392 (D. Colo. Nov. 15, 2013) (No. 1:13-cv-......
  • Zirpolo v. Williams, Civil Action No. 19-cv-2024-WJM-KMT
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • June 11, 2020
    ...1275, 1282 (10th Cir. 2009); see also Colo. Dep't of Pub. Health & Env't, Hazardous Materials & Waste Mgmt. Div. v. United States, 381 F. Supp. 3d 1300, 1315 (D. Colo. 2019) ("[C]laims subject to 28 U.S.C. § 2401(a) begin to run when the claim first accrues, not when Plaintiff knew or shoul......
  • Request a trial to view additional results
5 cases
  • Clarke v. Pac. Gas & Elec. Co., Case No. 20-cv-04629-WHO
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • November 20, 2020
    ...support of this theory, he cites to Colorado Dep't of Pub. Health & Env't, Hazardous Materials & Waste Mgmt. Div. v. United States , 381 F. Supp. 3d 1300, 1311 (D. Colo. 2019), where the court found Oklahoma Gas inapplicable because "[p]laintiff's claim alleges a failure to act," and becaus......
  • Carrington Mortg. Servs., LLC v. Tapestry At Town Ctr. Homeowners Ass'n, Case No. 2:17-cv-01047-RFB-PAL
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
    • March 31, 2019
    ...a question of fact for trial.c. HOA's Motion for Summary JudgmentThe HOA's motion for summary judgment is based on arguments regarding 381 F.Supp.3d 1300 facial constitutionality, tender, commercial reasonableness, and the Supremacy Clause. The Court incorporates by reference its reasoning ......
  • Bd. of Cnty. Comm'rs of the Cnty. of La Plata v. Colo. Dep't of Pub. Health & Env’t, Court of Appeals No. 18CA1551
    • United States
    • Colorado Court of Appeals of Colorado
    • March 26, 2020
    ...as a result of an oil spill or release of hazardous substances. See, e.g. , Colo. Dep't of Public Health & Env't v. United States , 381 F. Supp. 3d 1300, 1305 (D. Colo. 2019) ; Complaint at ¶ 5, United States v. Suncor Energy USA Inc. , 2013 WL 6042392 (D. Colo. Nov. 15, 2013) (No. 1:13-cv-......
  • Zirpolo v. Williams, Civil Action No. 19-cv-2024-WJM-KMT
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • June 11, 2020
    ...1275, 1282 (10th Cir. 2009); see also Colo. Dep't of Pub. Health & Env't, Hazardous Materials & Waste Mgmt. Div. v. United States, 381 F. Supp. 3d 1300, 1315 (D. Colo. 2019) ("[C]laims subject to 28 U.S.C. § 2401(a) begin to run when the claim first accrues, not when Plaintiff knew or shoul......
  • Request a trial to view additional results
1 books & journal articles
  • The Supreme Court Opens a Door in ARCO v. Christian, Part Two
    • United States
    • Environmental Law Reporter Nbr. 51-4, April 2021
    • April 1, 2021
    ...into a wetland. 24. 42 U.S.C. §§6901-6992k, ELR Stat. RCRA §§1001-11011. 25. Colorado Dep’t of Pub. Health & Env’t v. United States, 381 F. Supp. 3d 1300, 1308 (D. Colo. 2019). 26. hus, for example, eluent discharges covered by a CWA §402 permit in existence before a CERCLA remedial action ......

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