Pakootas v. Teck Cominco Metals, Ltd.

Jun 1: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-35951 & 10-35045. Appealed from the United States District Court for the Eastern District of Washington. The Appeals Court addresses citizen suit jurisdiction under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The case involves a facility in Canada that is polluting waters across the border in the U.S.

 

    The Appeals Court indicates 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. Pollution flowed downstream into the United States. Plaintiffs Joseph A. Pakootas and Donald R. Michel sued Teck Cominco to enforce the EPA's unilateral administrative order. They founded jurisdiction on the citizen suit provision of CERCLA, 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.

 

    The Appeals Court explains the complicated legal actions. 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. 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.

 

    The Appeals Court affirmed the district court's denial of Teck Cominco's motion and 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. Because a "site" where a hazardous substance has "come to be located" falls within the definition of a "facility" in CERCLA, the Appeals Court held that the EPA was not acting extraterritorially in addressing that downstream "facility." The Appeals Court said, "The unilateral administrative order, we held, was addressed to this 'facility' within the State of Washington.We did not reach the question of whether Congress intended CERCLA to apply extraterritorially."

 

    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 District Court "solely for the limited purpose of an action to enforce" designated provisions of the contract.

 

    Meanwhile, Teck Cominco had petitioned for certiorari from our decision. The Supreme Court, denied certiorari, so the arguments were not ruled upon. The Appeals Court explains that 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." Following a lengthy discussion of the legal issues, the Appeals Court concludes, "As the district court correctly concluded, it lacked jurisdiction to adjudicate the Pakootas and Michel claims for penalties for the 892 days of noncompliance with the unilateral administrative order, and properly dismissed their claims."

 

    Access the complete opinion (click here). [*Remed]

Tomas Carijano v. Occidental Petroleum Corporation

Jun 1: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 08-56187 & 08-56270. Appealed  from the United States District Court for the Central District of California. In the partially split decision a petition for panel rehearing was granted. The majority opinion indicates that the cross-appeals arise from the petroleum and oil exploration operations conducted by defendant Occidental Peruana (OxyPeru), an indirect subsidiary of defendant Occidental Petroleum Corporation (collectively Occidental), along the Rio Corrientes in the northern region of Peru.

 

    Plaintiffs, 25 members of the Achuar indigenous group dependent for their existence upon the rainforest lands and waterways along the river, and Amazon Watch, a California corporation, sued Occidental in Los Angeles County Superior Court for environmental contamination and release of hazardous waste. Although Occidental's headquarters is located in Los Angeles County, Occidental removed the suit to Federal district court where it successfully moved for dismissal on the ground that Peru is a more convenient forum. Plaintiffs appealed the dismissal of their suit.

 

    The Appeals Court said, "Occidental cross-appealed from the district court's determination that its motion to dismiss Amazon Watch for lack of standing is moot. Because Occidental failed to meet its burden of demonstrating that Peru is a more convenient forum, and the district court gave insufficient weight to the strong presumption in favor of a domestic plaintiff's choice of forum, the district court abused its discretion by dismissing the lawsuit without imposing mitigating conditions for the dismissal."

 

    The majority ruled, "Occidental had a substantial burden to persuade the district court to invoke the 'exceptional tool' of forum non conveniens and deny Plaintiffs access to a U.S. court. . . Occidental failed to meet that burden, and a proper balance of all the relevant factors at this stage of proceedings clearly demonstrates that this lawsuit should proceed in the Central District of California. We therefore reverse the district court's dismissal on the basis of forum non conveniens. We need not reach Plaintiffs' argument that the district court abused its discretion in denying discovery before ruling on Occidental's motion. We remand this case to the district court to consider the question of Amazon Watch's standing, and for further proceedings consistent with this opinion."

 

    The Justice concurring in part, dissenting in part said, "I agree that the district court did not abuse its discretion in determining that Peru is an adequate alternative forum. I also believe that conditions on dismissal might be appropriate, but would not require that any be imposed. Nor would I reanalyze whether to dismiss on grounds of forum non conveniens from scratch, because dismissals for forum non conveniens may be reversed only when there has been a clear abuse of discretion. . . The district court considered the relevant public and private interest factors, its findings are supported in the record, and its balancing of these factors was not unreasonable. Thus, its decision deserves substantial deference. . . Conditions such as accepting service, submitting to the jurisdiction, waiving the statute of limitations, making discovery, and agreeing to enforceability of the judgment may be appropriate here. I would, therefore, remand for the court specifically to consider whether its dismissal should be conditioned. Otherwise, I would affirm."

 

    Access the complete opinion and dissent (click here). [*Haz, *Toxics]

Sierra Club vs. Two Elk Generation Partners

May 31: In the U.S. Court of Appeals, Tenth Circuit, Case No. 10-8032. Appealed from the U.S. District Court for the District of Wyoming. Plaintiff-Appellant Sierra Club filed the action on January 29, 2009 under the citizen suit provision of the Clean Air Act (CAA), alleging that Defendant-Appellee Two Elk Generation Partners (Two Elk) is attempting to build a coal-fired power plant with an invalid Prevention of Significant Deterioration (PSD) permit in violation of the CAA. The district court granted Two Elk's motion to dismiss, holding that Sierra Club's suit was barred by the doctrine of "issue preclusion." In a split decision the Appeals Court affirmed the District Court opinion.

 

    Based on legal timelines and procedural matters, the majority ruled that, "Sierra Club chose not to intervene in the 2005 and 2007 proceedings before the Council. It never appealed the Council's 2005 Order, and it abandoned its appeal of the Council's 2007 Order. It now attempts to second guess the position taken by DEQ and the final decisions made by the Council and the Wyoming district court. Wyoming's policy of finality of judgments favors against allowing Sierra Club to relitigate issues that have already been decided."

 

    The dissenting justice indicated, "Because my colleagues expand the well-defined principles of parens patriae to include preclusion based on state intra-agency proceedings and because they misapply the doctrine of collateral estoppel, I respectfully dissent. The majority concludes that the common law applies to citizen suits under the Clean Air Act and thereby seeks to invoke parens partiae standing. But my colleagues ignore the Clean Air Act's impact on common-law principles. Even assuming

traditional preclusion doctrines were to apply, the 2005 and 2009 Orders lack preclusive effect."

 

    Access the complete opinion and dissent (click here). [*Air, *Energy/Coal]

 

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