Pakootas v. Metals, No. 08–35951.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore: ARTHUR L. ALARCÓN, ANDREW J. KLEINFELD, and RICHARD R. CLIFTON, Circuit Judges.
Citation646 F.3d 1214
PartiesJoseph A. PAKOOTAS, an individual and enrolled member of the Confederated Tribes of the Colville Reservation and Donald R. Michel, an individual and enrolled member of the Confederated Tribes of the Colville Reservation, Plaintiffs–Appellants,State of Washington, Petitioner–Intervenor–Appellant,andConfederated Tribes of the Colville Reservation, Plaintiff,v.TECK COMINCO METALS, LTD., a Canadian corporation, Defendant–Appellee.
Docket NumberNo. 08–35951.
Decision Date01 July 2011

646 F.3d 1214
2011 Daily Journal D.A.R. 9969

Joseph A. PAKOOTAS, an individual and enrolled member of the Confederated Tribes of the Colville Reservation and Donald R. Michel, an individual and enrolled member of the Confederated Tribes of the Colville Reservation, Plaintiffs–Appellants,State of Washington, Petitioner–Intervenor–Appellant,andConfederated Tribes of the Colville Reservation, Plaintiff,
v.
TECK COMINCO METALS, LTD., a Canadian corporation, Defendant–Appellee.

No. 08–35951.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 6, 2009.Filed June 1, 2011.Amended July 1, 2011.


[646 F.3d 1216]

Paul J. Dayton, Short Cressman & Burgess, PLLC, Seattle, WA, for the appellants.Michael L. Dunning (argued), and Kristie E. Carevich (briefed), Assistant Attorneys General, Olympia, WA, for intervenor-appellant State of Washington.C. Douglas Floyd (argued), and Kevin M. Fong (briefed), Pillsbury Winthrop Shaw Pittman LLP, San Francisco, CA, for the appellee.Appeal from the United States District Court for the Eastern District of Washington, Lonny R. Suko, Chief District Judge, Presiding. D.C. No. 2:04–cv–00256–LRS.Before: ARTHUR L. ALARCÓN, ANDREW J. KLEINFELD, and RICHARD R. CLIFTON, Circuit Judges.

ORDER

The opinion filed on June 1, 2011 is amended to include only No. 08–35951 on the caption. Pakootas v. Teck Cominco Metals, No. 10–35045 should be removed from the caption.

The amended opinion is filed concurrently with this order.

No petitions for rehearing or petitions for rehearing en banc will be entertained.

OPINION
KLEINFELD, Circuit Judge:

We address citizen suit jurisdiction under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

I. Facts

Teck Cominco Metals Limited (Teck Cominco), a Canadian mining company, owns a smelter in Trail, British Columbia. From 1905 to 1995, slag from the smelter was dumped in the Columbia River, ten miles north of the border with Washington.1 Pollution flowed downstream into the United States.

In 1999, the Colville Tribes petitioned the Environmental Protection Agency (EPA) to assess environmental contamination in the Columbia River and Lake Roosevelt, which border their reservation's lands.2 The EPA completed its investigation in 2003, determining that the Upper Columbia River site was eligible for inclusion on CERCLA's National Priorities List.3 That list is colloquially called the “Superfund List” because sites on it are top priorities for cleanup and are eligible for CERCLA-financed remedial action. 4

While the EPA's investigation was still ongoing in 2002, Teck Cominco and its American subsidiary, Teck Cominco American Incorporated, negotiated with the EPA, but did not reach an agreement.5 Complications arose from, among other reasons, Canadian government concerns about Canadian sovereignty and the American assertion of jurisdiction.

No voluntary agreement was reached, so the EPA in December 2003 issued a unilateral administrative order.6 The order commands Teck Cominco and its American subsidiary to conduct a remedial investigation and feasibility study to assess the site

[646 F.3d 1217]

conditions and to implement a cleanup. 7 Teck Cominco did not comply with the order.8 The EPA took no action to enforce it.9

Plaintiffs Joseph A. Pakootas and Donald R. Michel sued Teck Cominco to enforce the EPA's unilateral administrative order.10 They founded jurisdiction on the citizen suit provision of CERCLA,11 seeking: (1) a declaration that Teck Cominco was in violation of the order; (2) an injunction compelling compliance; (3) penalties for Teck Cominco's failure to comply; and (4) attorneys' fees and costs.12

Teck Cominco moved to dismiss for lack of subject matter and personal jurisdiction, and for failure to state a claim upon which relief could be granted. Before the district court ruled on the motion to dismiss, the State of Washington intervened in the litigation and sought the same relief. The district court denied Teck Cominco's motion to dismiss, but certified the order for interlocutory appeal.13 While that appeal was before us, the Confederated Tribes of the Colville Reservation joined as a party plaintiff. Subsequently, the State amended its complaint to seek the anticipated costs of the CERCLA recovery and assessment, as well as declaratory relief regarding the reasonable costs of assessing natural resource damages, a claim that is proceeding in district court. The Colville Tribes have added the same demand as the State, and these claims are now proceeding in district court.

We affirmed the district court's denial of Teck Cominco's motion. We held that the suit was not an extraterritorial application of CERCLA because even though the smelter was in Canada, slag had moved downstream into the United States.14 Because a “site” where a hazardous substance has “come to be located” falls within the definition of a “facility” in CERCLA, we held that the EPA was not acting extraterritorially in addressing that downstream “facility.” 15 The unilateral administrative order, we held, was addressed to this “facility” within the State of Washington. 16 We did not reach the question of whether Congress intended CERCLA to apply extraterritorially.17

While that appeal was pending, but before we had decided it, the EPA and Teck Cominco settled. The settlement went into effect in June 2006. Teck Cominco, the Canadian company together with its American subsidiary, and the EPA, signed what they called a “contractual agreement” (not a stipulation for a consent decree or other court order) to perform remediation. Teck Cominco consented to personal jurisdiction in the United States

[646 F.3d 1218]

District Court “solely for the limited purpose of an action to enforce” designated provisions of the contract. The EPA covenanted not to sue for penalties or injunctive relief for noncompliance with the unilateral administrative order, “conditioned upon the satisfactory performance” by Teck Cominco of its obligations under the contract. And pursuant to the contract, the EPA withdrew the unilateral administrative order. To this day, the EPA has taken no action to collect penalties for Teck Cominco's 892 days of noncompliance with that order. 18

Meanwhile, Teck Cominco had petitioned for certiorari from our decision. The Supreme Court, evidently considering the petition quite seriously, invited the Solicitor General to express the views of the United States. The Solicitor General, urging denial of certiorari, filed an amicus brief arguing both that the case was moot because of the settlement agreement, and that citizen suits for penalties could be brought only for ongoing, not past, violations. The Court denied certiorari, so these arguments were not ruled upon.19

Plaintiffs then amended their complaint, no longer seeking declaratory and injunctive relief, but maintaining their claims for civil penalties for Teck Cominco's 892 days of noncompliance with the unilateral administrative order, and for costs and attorneys' fees. Teck Cominco once again moved to dismiss. The district court dismissed the claims under Rule 12(b)(1) for lack of jurisdiction. The district court granted a stipulated Rule 54(b) certification of its dismissal order, because Pakootas and Michel had no claims except for penalties for the 892 days of past noncompliance, and resolution of the remaining claims of the Colville Tribes and the State of Washington for response costs or damages from the cleanup might not be resolved for several years.

Plaintiffs appeal.

II. Analysis

We review a district court's Rule 12(b)(1) dismissal de novo. 20 The district court held that the Pakootas–Michel claim for penalties for the 892 days of noncompliance was a challenge barred by 42 U.S.C. § 9613(h), and that it did not fall within § 9613(h)(2)'s exception. We generally agree with the district court's careful analysis and affirm. Appellants argue that the district court erred in both respects, and also that these statutory limitations go only to whether a claim upon which relief could be granted was stated, and not jurisdiction.

A. Is 42 U.S.C. § 9613(h) jurisdictional?

Plaintiffs argue that 42 U.S.C. § 9613(h) is a timing regulation, not a

[646 F.3d 1219]

limitation on jurisdiction. We disagree. Here is the relevant statutory language:

(h) Timing of review

No Federal court shall have jurisdiction under Federal law other than under section 1332 of Title 28 (relating to diversity of citizenship jurisdiction) or under State law which is applicable or relevant and appropriate under section 9621 of this title (relating to cleanup standards) to review any challenges to removal or remedial action selected under section 9604 of this title, or to review any order issued under section 9606(a) of this title, in any action except one of the following:

(1) An action under section 9607 of this title to recover response costs or damages or for contribution.

(2) An action to enforce an order issued under section 9606(a) of this title or to recover a penalty for violation of such order.

(3) An action for reimbursement under section 9606(b)(2) of this title.

(4) An action under section 9659 of this title (relating to citizens suits) alleging that the removal or remedial action taken under section 9604 of this title or secured under section 9606 of this title was in violation of any requirement of this chapter. Such an action may not be brought with regard to a removal where a remedial action is to be undertaken at the site.

(5) An action under section 9606 of this title in which the United States has moved to compel a remedial action.21

Plaintiffs argue that both the title of the subsection, “Timing of review,” and a Seventh Circuit decision, Frey v. EPA,22 establish that the statute merely regulates timing, and is not a true jurisdictional statute.

Subsequent to the Seventh Circuit's decision, the Supreme Court clarified how to determine whether a statute limits jurisdiction or simply affects...

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22 practice notes
  • Villegas v. United States, No. CV–12–0001–EFS.
    • United States
    • United States District Courts. 9th Circuit. Eastern District of Washington
    • January 30, 2013
    ...has been characterized by the Ninth Circuit as “a blunt withdrawal of federal jurisdiction.” Pakootas v. Teck Cominco Metals, Ltd., 646 F.3d 1214, 1220 (9th Cir.2011); see also McClellan Ecological Seepage Situation v. Perry (“MESS”), 47 F.3d 325, 328 (9th Cir.1995). Furthermore, CERCLA's b......
  • Giovanni v. U.S. Dep't of the Navy Dorothy Palmer, No. 17-2473
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 2, 2018
    ...challenge under § 113(h) if it directly conflicts with the implementation of the cleanup plan. See Pakootas v. Teck Cominco Metals, Ltd., 646 F.3d 1214, 1221-22 (9th Cir. 2011) (construing a private plaintiff's request for civil penalties resulting from the defendant's noncompliance with an......
  • Giovanni v. U.S. Dep't of the Navy, Nos. 17-2473 & 17-3196
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 2, 2018
    ...under § 113(h) if it directly conflicts with the implementation of the cleanup plan. See Pakootas v. Teck Cominco Metals, Ltd. , 646 F.3d 1214, 1221-22 (9th Cir. 2011) (construing a private plaintiff's request for civil penalties resulting from the defendant's noncompliance with an EPA admi......
  • Pakootas v. Teck Cominco Metals, Ltd., No. 16-35742
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 14, 2018
    ...were subsequently dismissed and judgment was entered against them, which we affirmed on appeal. Pakootas v. Teck Cominco Metals, Ltd. , 646 F.3d 1214, 1225 (9th Cir. 2011) (Pakootas II ).6 After the Phase I bench trial, the Tribes and the State filed amended complaints adding allegations th......
  • Request a trial to view additional results
21 cases
  • Villegas v. United States, No. CV–12–0001–EFS.
    • United States
    • United States District Courts. 9th Circuit. Eastern District of Washington
    • January 30, 2013
    ...has been characterized by the Ninth Circuit as “a blunt withdrawal of federal jurisdiction.” Pakootas v. Teck Cominco Metals, Ltd., 646 F.3d 1214, 1220 (9th Cir.2011); see also McClellan Ecological Seepage Situation v. Perry (“MESS”), 47 F.3d 325, 328 (9th Cir.1995). Furthermore, CERCLA's b......
  • Giovanni v. U.S. Dep't of the Navy Dorothy Palmer, No. 17-2473
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 2, 2018
    ...challenge under § 113(h) if it directly conflicts with the implementation of the cleanup plan. See Pakootas v. Teck Cominco Metals, Ltd., 646 F.3d 1214, 1221-22 (9th Cir. 2011) (construing a private plaintiff's request for civil penalties resulting from the defendant's noncompliance with an......
  • Giovanni v. U.S. Dep't of the Navy, Nos. 17-2473 & 17-3196
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 2, 2018
    ...under § 113(h) if it directly conflicts with the implementation of the cleanup plan. See Pakootas v. Teck Cominco Metals, Ltd. , 646 F.3d 1214, 1221-22 (9th Cir. 2011) (construing a private plaintiff's request for civil penalties resulting from the defendant's noncompliance with an EPA admi......
  • Pakootas v. Teck Cominco Metals, Ltd., No. 16-35742
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 14, 2018
    ...were subsequently dismissed and judgment was entered against them, which we affirmed on appeal. Pakootas v. Teck Cominco Metals, Ltd. , 646 F.3d 1214, 1225 (9th Cir. 2011) (Pakootas II ).6 After the Phase I bench trial, the Tribes and the State filed amended complaints adding allegations th......
  • Request a trial to view additional results
1 books & journal articles
  • The Site Cleanup Processes
    • United States
    • Superfund Deskbook -
    • August 11, 2014
    ...to a blunt withdrawal of federal jurisdiction.” (internal quotations omitted)). 216. See, e.g. , Pakootas v. Teck Cominco Metals, Ltd., 646 F.3d 1214, 1218 (9th Cir. 2011); Cannon v. Gates, 538 F.3d 1328, 1330 (10th Cir. 2008); Clinton Cnty. Comm’rs v. EPA, 116 F.3d 1018, 1027 (3d Cir. 1997......

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