State of Utah By and Through Utah State Dept. of Health v. Kennecott Corp.

• Decision Date: 31 January 1994
• Docket Number: Nos. 92-4173,92-4179 and 92-4180,s. 92-4173
• Citation: 14 F.3d 1489
• Parties: , 24 Envtl. L. Rep. 20,798 STATE OF UTAH, By and Through the UTAH STATE DEPARTMENT OF HEALTH, Plaintiff-Appellant, v. KENNECOTT CORPORATION, Defendant-Appellant and Cross-Appellee, Salt Lake County Water Conservancy District, Intervenor-Appellee and Cross-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1489

14 F.3d 1489

62 USLW 2486, 24 Envtl. L. Rep. 20,798

STATE OF UTAH, By and Through the UTAH STATE DEPARTMENT OF HEALTH, Plaintiff-Appellant, v. KENNECOTT CORPORATION, Defendant-Appellant and Cross-Appellee Salt Lake County Water Conservancy District Intervenor-Appellee and Cross-Appellant.

Nos. 92-4173, 92-4179 and 92-4180.

United States Court of Appeals Tenth Circuit.

Jan. 31, 1994.

Fred G. Nelson (Jan Graham, Atty. Gen.; R. Paul Van Dam, and Denise Chancellor, Utah Atty. General's Office, with him on the brief), Salt Lake City, UT, for plaintiff-appellant State of Utah; David W. Tundermann (James B. Lee, Daniel M. Allred, Jim Butler, and Lisa A. Kirschner with him, on the briefs) of Parsons Behle & Latimer, Salt Lake City, UT, for defendant-appellant and cross-appellee Kennecott Corp.

Douglas J. Parry of Parry Murray Ward & Cannon, Salt Lake City, UT, and Dale F. Gardiner, Salt Lake County Water Conservancy Dist., West Jordan, UT (Blake S. Atkin of Parry Murray Ward & Cannon, Salt Lake City, UT, with him on the briefs), for intervenor-appellee and cross-appellant.

Rex E. Lee, Richard B. Stewart, and James L. Connaughton of Sidley & Austin, Washington, DC, for amicus curiae Western Regional Council.

Maria Savasta Kennedy and Laurens H. Silver of Sierra Club Legal Defense Fund, San Francisco, CA, and Kenley W. Brunsdale, Salt Lake City, UT, for amici curiae Sierra Club and the Mineral Policy Center.

Before BALDOCK, McWILLIAMS, and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

Both the State of Utah and Defendant Kennecott Corporation appeal an order of the federal district court denying a motion to approve and enter a consent decree submitted by the parties. The proposal would settle Utah's claim for natural resources damages under Sec. 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. Secs. 9601-9675. Salt Lake County Conservancy District (District), a permissive intervenor in the proceeding below, cross-appeals the trial court's decision to deny the District intervention as a matter of right. The District also moves to dismiss the appeal of Utah and Kennecott for lack of jurisdiction. We are asked to review a nonfinal order of a district court under various exceptions to 28 U.S.C. Sec. 1291 including (1) the collateral order exception to the finality doctrine, (2) this court's interpretation of pragmatic finality, and (3) an interlocutory order with the practical effect of granting or denying injunctive relief. We grant the motion to dismiss for lack of jurisdiction.

BACKGROUND

Kennecott, Utah, and various local governments have, since 1983, studied the threat of groundwater contamination from Kennecott's Bingham Canyon mining operations in Salt Lake County. In 1986, Utah filed CERCLA claims, presumably to preserve its rights in light of CERCLA's statute of limitations. At that time, asserted damages were $129 million based on potential injury to 109,215 acre feet of groundwater over a ten to twenty year period. Prior to the 1992 memorandum and order of the trial court, ¹ various stays were granted to allow settlement negotiations and the completion of technical studies.

Kennecott's first settlement proposal offered the assignment of their water rights (valued at $2 million) plus $100 million for remediation of the contaminated water in exchange for dismissal of the lawsuit. Kennecott also proposed to take independent action to reduce continued pollution from the mining operation sources and to remediate heavy metals from the spreading contaminate plume. Utah rejected this offer and stressed that, given the tentative knowledge of the plume's content, boundary, and migration, the State could not conclude the settlement would satisfy all public health concerns.

Subsequent negotiations split the issues of natural resources damages and costs of remediation. Utah, Kennecott and the United States Environmental Protection Agency (EPA) negotiated an Agreement in Principle toward future cleanup and response costs associated with remediating the Kennecott mining operation contamination. ² The Agreement expressly disclaimed any effect on Utah's settlement of natural resources damage claims.

With the current proposal, in exchange for monetary recovery of $12 million, Utah agreed to release Kennecott from (1) all damages to surface or groundwater in a defined mining impact area, and (2) injunctive relief or response costs associated with plume remediation. The release was limited by a reopener provision, reserving Utah's right to seek additional recovery if the contamination was discovered to be greater than anticipated. The release also expressly preserved potential claims by third parties.

After a period of public comment, the trial court declined to approve the proposed settlement and ordered an evidentiary hearing. The District moved to intervene as a matter of right. The trial court denied this motion but granted permissive intervention for the After consolidating the appeals, we asked the parties to file memorandum briefs on the issue of jurisdiction pursuant to 10th Cir.R. 27.2.2. Before us is a motion by the District to dismiss the Utah and Kennecott appeals for lack of a "final appealable order" upon which to base 28 U.S.C. Sec. 1291 jurisdiction. ³

                limited purposes of participating in discovery and evidentiary hearings.  Reviewing the proposed consent decree for a settlement that was " 'reasonable, fair, and consistent with the purposes that CERCLA is intended to serve,' " the trial court concluded the proposal was deficient.  Kennecott, 801 F.Supp. at 567 (citation omitted).  Accordingly, the trial court denied approval of the proposed consent decree.  Id. at 572.   Instead of attending a scheduled case management conference, both Utah and Kennecott separately appealed the trial court's order of denial.  The District, a permissive intervenor, cross-appealed the denial of intervention as a matter of right
                

DISCUSSION

Title 28 U.S.C. Sec. 1291 provides "jurisdiction of appeals from all final decisions of the district courts of the United States." Historically, a "final decision" is a decision by the district court that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945); see Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 275, 108 S.Ct. 1133, 1136, 99 L.Ed.2d 296 (1988). In the instant case, an order denying a motion to approve and enter a consent decree is not a decision on the merits that ends the litigation. Rather, the district court's order ensures that litigation will continue in the district court. Appellants Utah and Kennecott concede as much and argue the trial court's order is immediately appealable under various exceptions to the finality requirement. In particular, Appellants contend jurisdiction is proper under (1) the collateral order exception to Sec. 1291, (2) the pragmatic finality doctrine, or (3) the Sec. 1292(a)(1) statutory exception, an order with the practical effect of granting or denying injunctive relief. ⁴

I

The Supreme Court, beginning with Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), has interpreted Sec. 1291 to permit an appeal of a nonfinal order if an order falls within the "narrow exception to the normal application of the final judgment rule, which has come to be known as the collateral order doctrine." Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1498, 103 L.Ed.2d 879 (1989). To meet the Cohen exception an order must " conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978). Unless all three requirements are met, jurisdiction is not available under the collateral order doctrine. Gulfstream, 485 U.S. at 276, 108 S.Ct. at 1136-37. The trial court's denial of the proposed consent decree does not satisfy either the first or second prongs.

A

To first satisfy the Cohen doctrine, the trial court's denial of the consent decree must conclusively determine the parties' ability to settle their claims. Orders that are "inherently tentative" are contrasted with those expected to be the final word on the subject addressed. See Gulfstream, 485 U.S. at 277-78, 108 S.Ct. at 1137-38 (rejecting Although noting a conflict in the circuits, the Supreme Court, in Carson v. American Brands, Inc., 450 U.S. 79, 82-83 nn. 6 & 7, 101 S.Ct. 993, 996 nn. 6 & 7, 67 L.Ed.2d 59 (1981), declined to decide whether an appeal under the collateral order exception was proper for denials of consent decrees. At least one federal circuit has ruled a district court's refusal to enter a consent decree is not appealable under Sec. 1291, see Seigal v. Merrick, 590 F.2d 35 (2d Cir.1978), while another has decided such orders are appealable, Norman v. McKee, 431 F.2d 769 (9th Cir.1970), cert. denied, 401 U.S. 912, 91 S.Ct. 879, 880, 27 L.Ed.2d 811 (1971). ⁵ Other circuits simply reject collateral order jurisdiction in dicta. See Donovan v. Robbins, 752 F.2d 1170, 1172 (7th Cir.1985) (refusal to approve consent decree is "classic example of a nonfinal order"); New York v. Dairylea Coop. Inc., 698 F.2d 567, 570 n. 10 (2d Cir.1983) (approving of appellant's decision not to raise collateral order grounds, stating the Cohen exception "is to be kept within narrow bounds"); Carson v. American Brands, Inc., 606 F.2d 420, 423-24 (4th Cir.1979) (approving of Seigal as an analogous case though dismissing on Sec. 1292(a)(1) grounds), rev'd on other grounds, 450 U.S. 79, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981). We conclude the better reasoned rule finds a denial of a settlement does not conclusively determine the...