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El Paso Natural Gas Company LLC v. United States

United States District Court, D. Arizona

June 2, 2017

El Paso Natural Gas Company LLC, Plaintiff,
v.
United States of America, et al., Defendants.

          ORDER

          David G. Campbell United States District Judge

         Plaintiff 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.

         I. Background.

         Plaintiff 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.

         II. Legal Standard.

         A party 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.

         III. Analysis.

         “CERCLA 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).

         To 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. § 9607(a).

         A. Sovereign Immunity.

         The 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.

         Under § 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.

         The 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 liability.” Id.

         The 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.

         The 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 ...


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