U.S. v. Friedland, No. 96-N-1213.

Docket NºNo. 96-N-1213.
Citation173 F.Supp.2d 1077
Case DateJuly 02, 2001
CourtSupreme Court of Colorado

Page 1077

173 F.Supp.2d 1077
UNITED STATES of America and the State of Colorado, Plaintiffs, Counter-Defendants, and Third-Party Defendants,
v.
Robert M. FRIEDLAND, Defendant, Counter-Defendant, Counter-Claimant and Third-Party Plaintiff,
v.
Aztec Minerals Corporation, an Ohio corporation; South Mountain Minerals Corporation and Gray Eagle Mining Corporation, a Colorado Corporation, Third-Party Defendants, Counter and Cross-Claimants, and Third-Party Plaintiffs,
v.
Bechtel Corporation; f/k/a Bechtel Civil, Inc., f/k/a Bechtel Civil & Minerals, Inc.; Bank of America National Trust and Savings Association, a national banking association; Industrial Constructors Corporation, a Montana corporation; A.O. Smith Corporation, a New York corporation; Columbia Geostystems, Ltd., f/k/a Columbia Reservoir Systems, Ltd., an Alberta, Canada corporation; GSE Lining Technology, Inc. (as successor to Gundle Lining Systems, Inc., a/k/a Gundle Liner Systems, Inc.), a Delaware corporation; Klohn Leonoff, Inc., a Colorado corporation; Klohn Leonoff, Ltd., in its English form; and Klohn-Leonoff, Liee, in its alternative French form, a British Columbia, Canada Company, Third-Party Defendants and Cross-Claim Defendants.
No. 96-N-1213.
United States District Court, D. Colorado.
July 2, 2001.

Page 1078

COPYRIGHT MATERIAL OMITTED

Page 1079

Nancy Ann Mangone, Environmental Protection Agency, Denver, CO, Melissa K. Ward, U.S. Environmental Protection Agency, Washington, DC, David Dain, Lois J. Schiffer, John W. Sither, A. Kent Mayo, U.S. Department of Justice, Environmental Enforcement Section, Environment & Natural Resources Division, Washington, DC, Alan David Greenberg, Peter R. Mounsey, John N. Moscato, James D. Freeman, U.S. Department of Justice, Environment & Natural Resources Division, Denver, CO, Richard B. Caschette, Kennedy & Christopher, P.C., Denver, CO, Leonard M. Gelman, Environmental Protection Agency, Environmental Enforcement, Denver, CO, Michael P. Carey, Richard T. Spriggs, U.S. Attorney's Office, Denver, CO, for U.S.

Cheryl A. Linden, Jane T. Feldman, Jennifer Lee Gimbel, Laura Marie Maresca, Attorney General's Office, General Legal Services Section,Denver, CO, Felicity Hannay, Davis, Graham & Stubbs LLP, Denver, CO, Gale A. Norton, Attorney General's Office, Department of Law, Denver, CO, Alan J. Gilbert, Daniel S. Miller, Stephen Marshall Brown, Robert J. Eber, Attorney General's Office, Natural Resources Unit, Denver, CO, Patricia S. Bangert, Powers & Phillips, PC, Denver, CO, Timothy M. Tymkovich, Hale, Hackstaff, Tymkovich & ErkenBrack, LLP, Denver, CO, Robert Reiny Marsh, Attorney General's Office, Criminal Enforcement Division, Denver, CO, Robert D. Clark, Attorney General's Office, Business and Licensing Section, Denver, for State of Colorado.

Frederick J. Baumann, James M. Lyons, Scott Mark Browning, Rothgerber, Johnson & Lyons, LLP,Denver, CO, Lee D. Foreman, Saskia A. Jordan, Haddon, Morgan & Foreman, P.C., Denver, CO, John Dennis Fognani, Christopher L. Thorne, Suzanna K. Moran, Zevnik, Horton, Guibord, McGovern, Palmer & Fognani, LLP, Denver, CO, Craig V. Richardson, Greenberg, Taurig, LLP, Denver, CO, for Robert M. Friedland.

Stanley L. Garnett, Connie Louise Peterson, Mark M. Mathews, Angela Wynn Victoria Jacobs, Amy Monger, Brownstein, Hyatt & Farber, P.C., Denver, CO, Rebecca L. Summerville, Ronald B. MacDonald, Datsopoulos, MacDonald & Lind, PC, Missoula, MT, for Industrial Constructors Corp.

Timothy R. Gablehouse, Donn Lee Calkins, Melanie Joy Granberg, Gablehouse & Epel, LLC, Denver, CO, for Aztec Minerals Corp., Gray Eagle Mining Corporation, South Mountain Minerals Corporation.

Page 1080

Mark A. Wielga, Elizabeth Hope Temkin, Temkin, Wielga & Hardt, L.L.P., Denver, CO, for Cleveland-Cliffs Iron Co., an Union Pacific Resources Co., Union Pacific Resources Group.

Peter John Korneffel, Jr., Brownstein, Hyatt & Farber, P.C., Denver, CO, James A. Clark, Cassandra Gay Sasso, Munir Reza Meghjee, Baker & Hostetler, Denver, CO, for Bechtel Corp.

J. Eric Elliff, Tarek Fathi M. Saad, Morrison & Foerster, Denver, CO, Arne David Wagner, Michele Biegel Corash, Morrison & Foerster, LLP, San Francisco, CA, for Bank of America Nat. Trust and Savings Ass'n.

Richard S. Vermeire, John L. Watson, Craig B. Shaffer, Dianne Michelle Kueck, Moye, Giles, O'Keefe, Vermeire & Gorrell, Denver, CA, Joanne Herlihy, Dufford & Brown, P.C., Denver, CO, for A.O. Smith Corp.

Paul David Phillips, Steven W. Black, Holland & Hart, LLP, Denver, CO, for Columbia Geosystems, Ltd.

William C. Scott, Stuart R. Butzier, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, NM, Victor F. Boog, Linda Ann Battalora, Victor F. Boog, P.C., Lakewood, CO, for Southway Const. Co., Inc.

Jennifer K. Schreck, Gibson, Dunn & Crutcher, Denver, CO, for Staker Paving and Const. Co., Inc.

James Daniel Levine, Long, Aldridge & Norman, LLP, Atlanta, GA, James T. Markus, John Frederick Young, Block, Marcus and Williams, LLC, Denver, CO, for Geosyntec Consultants, P.C.

Hugh Gottschalk, Terence M. Ridley, Wheeler, Trigg & Kennedy, PC, Denver, CO, for Sun Oil.

ORDER AND MEMORANDUM OF DECISION

NOTTINGHAM, District Judge.


This is a CERCLA action. Third-Party Defendant and Crossclaim Defendant A.O. Smith Corporation ("A.O.Smith"), moves for summary judgment in its favor on all third-party claims asserted against it by Defendant Robert M. Friedland ("Friedland"), and on all crossclaims asserted against it by third-party defendants Aztec Minerals Corporation, South Mountain Minerals Corporation, Grey Eagle Mining Corporation (collectively "the Aztec Group") and Industrial Constructors Corporation ("ICC"). Specifically, A.O. Smith requests this court to find as a matter of law that it is not liable as an operator or arranger for the release or threatened release of hazardous substances at the Summitville Mine site, pursuant to sections 107 and 113 of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C.A. §§ 9607(a), 9613 (West 1995 & Supp.2000). This matter is before the court on "Third-Party Defendant and Crossclaim Defendant A.O. Smith Corporation's Motion for Summary Judgment" filed February 1, 2000. Jurisdiction is based upon 42 U.S.C.A. §§ 9607(a) and 9613(b) and 28 U.S.C.A. § 1331 (West 1993).

FACTS

During the time in question, A.O. Smith was incorporated as a New York Corporation. (Third-Party Def. and Crosscl. Def. A.O. Smith Corporation's Mem. Br. in Supp. of its Mot. for Summ. J., Statement of Undisputed Material Facts ¶ 1 [filed Feb. 1, 2000] [hereinafter "A.O. Smith's Br."]; admitted in pertinent part at Robert M. Friedland's [Corrected] Resp. in Opp'n to A.O. Smith Corporation's Mot. for Summ. J., Resp. to Statement of Undisputed Material Facts ¶ 1 [filed Mar. 23, 2000]

Page 1081

[hereinafter "Friedland's Resp."]; Mem. of Industrial Constructors Corp. in Opp'n to A.O. Smith Corporation's Mem. Br. in Supp. of its Mot. for Summ. J., ICC's Resp. to A.O. Smith's Statement of Undisputed Facts ¶ 1 [filed Mar. 17, 2000] [hereinafter "A.O. Smith's Resp."]; admitted at Aztec Minerals Corporation's, Gray Eagle Mining Corporation's and South Mountain Minerals Corporation's Resp. in Opp'n to Third-Party Def. and Crosscl. Def. A.O. Smith's Mot for Summ. J., Resp. to Statement of Undisputed Facts ¶ 1 [filed Mar. 17, 2000] [hereinafter "Aztec's Br."].) Mining activity began in the Summit Mining District in Rio Grande County as early as 1873. (Id., Statement of Undisputed Material Facts ¶ 2; admitted at Friedland's Resp., Resp. to Statement of Undisputed Material Facts ¶ 2; ICC's Resp., ICC's Resp. to A.O. Smith's Statement of Undisputed Facts ¶ 2; Aztec's Resp., Resp. to Statement of Undisputed Facts ¶ 2.) By 1881, underground mining was taking place and mills were in operation at the Summitville mines. (Id., Statement of Undisputed Material Facts ¶ 2; admitted at Friedland's Resp., Resp. to Statement of Undisputed Material Facts ¶ 2; ICC's Resp., ICC's Resp. to A.O. Smith's Statement of Undisputed Facts ¶ 2; Aztec's Resp., Resp. to Statement of Undisputed Facts ¶ 2.)

On June 24, 1933, Summitville Mines Corporation, the owner of mining property at Summitville, granted a lease on that property to B.T. Poxson and George H. Garrey. (Id., Statement of Undisputed Material Facts ¶ 3; admitted in pertinent part at Friedland's Resp., Resp. to Statement of Undisputed Material Facts ¶ 3; ICC's Resp., ICC's Resp. to A.O. Smith's Statement of Undisputed Facts ¶ 3; Aztec's Resp., Resp. to Statement of Undisputed Facts ¶ 3.) On or about July 11, 1933, Poxson and Garrey formed Summitville Gold Mines, Inc., a Colorado corporation, and transferred to that company the lease granted to them by Summitville Mines Corporation. (Id., Statement of Undisputed Material Facts ¶ 3; admitted in pertinent part at Friedland's Resp., Resp. to Statement of Undisputed Material Facts ¶ 3; ICC's Resp., ICC's Resp. to A.O. Smith's Statement of Undisputed Facts ¶ 3; Aztec's Resp., Resp. to Statement of Undisputed Facts ¶ 3.) On July 29, 1933, Poxson and Garrey formed a second Colorado corporation, Summitville Leasing Company. (Id., Statement of Undisputed Material Facts ¶ 3; admitted in pertinent part at Friedland's Resp., Resp. to Statement of Undisputed Material Facts ¶ 3; ICC's Resp., ICC's Resp. to A.O. Smith's Statement of Undisputed Facts ¶ 3; Aztec's Resp., Resp. to Statement of Undisputed Facts ¶ 3.) There is a dispute as to whether or not Poxson and Garrey had any connection to A.O. Smith. (Id., Statement of Undisputed Material Facts ¶ 3; denied in part at Friedland's Resp., Resp. to Statement of Undisputed Material Facts ¶ 3; ICC's Resp., ICC's Resp. to A.O. Smith's Statement of Undisputed Facts ¶ 3; Aztec's Resp., Resp. to Statement of Undisputed Facts ¶ 3.)

To raise additional capital to develop the Summitville mining properties on a larger scale, in early 1934, Poxson and Garrey entered into an agreement with a...

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9 practice notes
  • City of Tulsa v. Tyson Foods, Inc., No. 01-CV-0900-EA(C).
    • United States
    • United States District Courts. 10th Circuit. Northern District of Oklahoma
    • March 14, 2003
    ...(adopting the Montalvo test as "most faithful to the statutory language and purposes of CERCLA") and U.S. v. Friedland, 173 F.Supp.2d 1077 (D.Colo.2001) (same). Applying the factors therein, the Court cannot determine as a matter of law whether the Poultry Defendants have "ar......
  • Colo. Dep't of Pub. Health v. United States, U.S. Dep't of the Army, U.S. Fish & Wildlife Serv., & Shell Oil Co., Civil Action No. 17-cv-02223-RM-MEH
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • March 5, 2018
    ...discuss whether a parent company may be considered an operator of a unit that its subsidiary manages. See United States v. Friedland, 173 F. Supp. 2d 1077 (D. Colo. 2001); Bestfoods, 524 U.S. at 71. As such, the cases analyzed whether the parent exercised a sufficient degree of control over......
  • Friedland v. Travelers Indem. Co., No. 03SC681.
    • United States
    • Colorado Supreme Court of Colorado
    • January 31, 2005
    ...recovery under CERCLA of response, investigation, remediation and other costs incurred at the site. See United States v. Friedland, 173 F.Supp.2d 1077 (D.Colo.2001). Friedland defended the lawsuit. After approximately four years of litigation, he settled the claims against him by paying twe......
  • Colo. Dep't of Pub. Health v. United States, Civil Action No. 17-cv-02223-RM-SKC
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • March 13, 2019
    ...does not disregard Shell's cited caselaw. The Recommendation discussed, but rejected, Shell's reliance on United States v. Friedland , 173 F.Supp.2d 1077 (D. Colo. 2001). (ECF No. 42 at 12.) The Court also notes that Friedland analyzed evidence presented on the issue of direct liability in ......
  • Request a trial to view additional results
9 cases
  • City of Tulsa v. Tyson Foods, Inc., No. 01-CV-0900-EA(C).
    • United States
    • United States District Courts. 10th Circuit. Northern District of Oklahoma
    • March 14, 2003
    ...(adopting the Montalvo test as "most faithful to the statutory language and purposes of CERCLA") and U.S. v. Friedland, 173 F.Supp.2d 1077 (D.Colo.2001) (same). Applying the factors therein, the Court cannot determine as a matter of law whether the Poultry Defendants have "ar......
  • Colo. Dep't of Pub. Health v. United States, U.S. Dep't of the Army, U.S. Fish & Wildlife Serv., & Shell Oil Co., Civil Action No. 17-cv-02223-RM-MEH
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • March 5, 2018
    ...discuss whether a parent company may be considered an operator of a unit that its subsidiary manages. See United States v. Friedland, 173 F. Supp. 2d 1077 (D. Colo. 2001); Bestfoods, 524 U.S. at 71. As such, the cases analyzed whether the parent exercised a sufficient degree of control over......
  • Friedland v. Travelers Indem. Co., No. 03SC681.
    • United States
    • Colorado Supreme Court of Colorado
    • January 31, 2005
    ...recovery under CERCLA of response, investigation, remediation and other costs incurred at the site. See United States v. Friedland, 173 F.Supp.2d 1077 (D.Colo.2001). Friedland defended the lawsuit. After approximately four years of litigation, he settled the claims against him by paying twe......
  • Colo. Dep't of Pub. Health v. United States, Civil Action No. 17-cv-02223-RM-SKC
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • March 13, 2019
    ...does not disregard Shell's cited caselaw. The Recommendation discussed, but rejected, Shell's reliance on United States v. Friedland , 173 F.Supp.2d 1077 (D. Colo. 2001). (ECF No. 42 at 12.) The Court also notes that Friedland analyzed evidence presented on the issue of direct liability in ......
  • Request a trial to view additional results

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