United States District Court, D. Arizona
G. Campbell United States District Judge
El Paso Natural Gas Company brought suit under the
Comprehensive Environmental Response, Compensation, and
Liability Act (“CERCLA”) against Defendants
United States of America, United States Department of the
Interior, United States Bureau of Indian Affairs, United
States Geological Survey, United States Department of Energy,
and United States Nuclear Regulatory Commission
(collectively, “United States”). Doc. 55.
Plaintiff has filed a motion for partial summary judgment.
Doc. 114. The motion is fully briefed (Docs. 114, 119, 123),
and the Court heard oral argument on June 1, 2017. For
reasons that follow, the Court rejects the United States'
sovereign immunity defense and will require additional
briefing on the question of its CERCLA owner liability.
brings claims under §§ 107 and 113 of CERCLA to
recover response costs incurred in remediating 19 historical
uranium mines located on the Navajo reservation (the
“Mine Sites”). Doc. 55, ¶¶ 1-2. The
parties stipulate that the United States has owned fee title
to the Navajo reservation, in trust for the benefit of the
Navajo Nation, since at least 1952, including the subsurface
minerals. Doc. 83, ¶¶ 23-24.
seeking summary judgment “bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Summary judgment is
appropriate if the evidence, viewed in the light most
favorable to the nonmoving party, shows “that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). Summary judgment is also appropriate against a party
who “fails to make a showing sufficient to establish
the existence of an element essential to that party's
case, and on which that party will bear the burden of proof
at trial.” Celotex, 477 U.S. at 322.
is a strict liability statute in that it does not require a
party to act culpably in order to be liable for clean
up.” Voggenthaler v. Maryland Square LLC, 724
F.3d 1050, 1061 (9th Cir. 2013). CERCLA's provisions
should be interpreted “liberally to effectuate the
statute's two primary goals: ‘(1) to ensure the
prompt and effective cleanup of waste disposal sites, and (2)
to assure that parties responsible for hazardous substances
bear the cost of remedying the conditions they
created.'” City of Los Angeles v. San Pedro
Boat Works, 635 F.3d 440, 447 (9th Cir. 2011) (quoting
Carson Harbor Village, Ltd. v. Unocal Corp., 270
F.3d 863, 880 (9th Cir.2001)) (alterations incorporated).
establish a prima facie claim for recovery of response costs
under CERCLA, a private-party plaintiff must show:
(1) the site on which the hazardous substances are contained
is a “facility” under CERCLA's definition of
that term, Section 101(9), 42 U.S.C. § 9601(9); (2) a
“release” or “threatened release” of
any “hazardous substance” from the facility has
occurred, 42 U.S.C. § 9607(a)(4); (3) such
“release” or “threatened release” has
caused the plaintiff to incur response costs that were
“necessary” and “consistent with the
national contingency plan, ” 42 U.S.C. §§
9607(a)(4) and (a)(4)(B); and (4) the defendant is within one
of four classes of persons subject to the liability
provisions of Section 107(a).
City of Colton v. Am. Promotional Events, Inc.-W.,
614 F.3d 998, 1002-03 (9th Cir. 2010) (quoting Carson
Harbor Village, 270 F.3d at 870-71). The parties
stipulate that the first three requirements are satisfied.
Docs. 113, 119. The only issue before the Court on this
motion is whether the United States falls within one of the
four classes of persons subject to liability under §
107(a) - specifically, whether the United States qualifies as
an “owner” of the Mine Sites under 42 U.S.C.
United States first contends that Plaintiff's CERCLA
claims are barred by sovereign immunity. Doc. 119 at 8.
Plaintiff argues that the United States' sovereign
immunity has been waived by CERCLA. Doc. 123 at 12.
§ 9620(a)(1) of CERCLA, “[e]ach department,
agency, and instrumentality of the United States . . . shall
be subject to . . . this chapter in the same manner and to
the same extent, both procedurally and substantively, as any
nongovernmental entity, including liability under section
9607 of this title.” 42 U.S.C. § 9620(a)(1). The
United States concedes that this provision waives its
sovereign immunity in at least some cases. Doc. 119 at 8. The
United States argues that the waiver does not apply in this
case, however, because § 9620 waives sovereign immunity
only when the government is liable “in the same manner
and to the same extent” as private parties, and
“private parties do not engage on a
government-to-government basis with tribal nations or have a
trust responsibility under federal law.” Doc. 119 at 9.
As a result, the United States argues, Congress did not
clearly waive sovereign immunity for claims asserting
government liability based on ownership of land held in trust
for the Navajo Nation. Id. at 9.
Ninth Circuit has rejected a similar argument. In United
States v. Shell Oil Co., 294 F.3d 1045 (9th Cir. 2002),
several oil companies alleged that the United States was
liable under CERCLA for contamination arising from war time
operations of fuel refining facilities. As in this case, the
United States argued that the § 9620(a)(1) waiver
applied only when the government was acting in the same
manner as a private party - that the waiver was
“limited to cases in which [the United States] had
undertaken ‘nongovernmental' activities.”
Id. at 1052. The Ninth Circuit disagreed:
the United States has repeatedly been held liable under
CERCLA for acts that cannot possibly be characterized as
“nongovernmental.” The clearest example is the
United States' immense CERCLA liability for cleanups
associated with military installations and activity. Private
parties do not operate military bases, and yet the United
States has been found liable for the cleanup of hazardous
wastes at military facilities.
Id. at 1053. Shell Oil held that
“CERCLA's waiver of sovereign immunity is
coextensive with the scope of liability imposed by 42 U.S.C.
§ 9607. If § 9607 provides for liability, then
§ 9620(a)(1) waives sovereign immunity to that
United States seeks to distinguish Shell Oil,
arguing that it “did not consider the situation here -
whether CERCLA's waiver allows an ‘owner'
liability claim based on land held in trust for the Nation -
and nothing in the statute unequivocally establishes Congress
intended to expose the United States to El Paso's
‘owner' claim.” Doc. 119 at 9. But Shell
Oil specifically held that the United States could be
held liable under CERLCA for uniquely governmental
activities. 294 F.3d at 1053. Moreover, by holding that the
waiver of sovereign immunity is co-extensive with §
9607, Shell Oil makes clear that the United States
can be held liable under CERCLA whenever it meets the
requirements for liability as an owner under §
9607(a)(1). Thus, while the United States'
“government-to-government relationship with the
Nation” may affect whether it is an owner subject to
liability under § 9607, if it is, Shell Oil
makes clear that sovereign immunity does not bar the claim.
United States also argues that “imposing CERCLA
liability on the United States solely for holding
title to land for the benefit of the Nation leads to absurd
results that cannot be accepted.” Doc. 119 at 9.
According to this argument, imposing “‘owner'
liability on the United States solely because it holds bare
title to trust lands, could lead to a dramatic expansion of
the United States' CERCLA liability with respect to
hundreds of thousands of acres of tribal lands across the
country, necessitating tighter federal oversight over tribes
and undercutting the United ...