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Pakootas v Teck Cominco Metals, Ltd.

Case No. 08-35951 (C.A. 9, Jun. 1, 2011)

We address citizen suit jurisdiction under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

I. Facts

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.

In 1999, the Colville Tribes petitioned the Environmental Protection Agency (EPA) to assess environmental contamination in the Columbia River and Lake Roosevelt, which border their reservation’s lands. The EPA completed its investigation in 2003, determining that the Upper Columbia River site was eligible for inclusion on CERCLA’s National Priorities List. That list is colloquially called the “Superfund List” because sites on it are top priorities for cleanup and are eligible for CERCLA-financed remedial action.

While the EPA’s investigation was still ongoing in 2002, Teck Cominco and its American subsidiary, Teck Cominco American Incorporated, negotiated with the EPA, but did not reach an agreement. Complications arose from, among other reasons, Canadian government concerns about Canadian sovereignty and the American assertion of jurisdiction.
 

 

Judge(s): Andrew J. Kleinfeld
Jurisdiction: U.S. Court of Appeals, Ninth Circuit
Related Categories: Civil Remedies
 
Circuit Court Judge(s)
Arthur Alarcon
Richard Clifton
Andrew Kleinfeld

 
Trial Court Judge(s)
Lonny Suko

 
Intervenors Lawyer(s) Intervenors Law Firm(s)
Kristie Carevich Office of the Washington Attorney General
Michael Dunning Office of the Washington Attorney General

 
Appellant Lawyer(s) Appellant Law Firm(s)
Paul Dayton Short Cressman & Burgess PLLC

 
Appellee Lawyer(s) Appellee Law Firm(s)
Douglas Floyd Pillsbury Winthrop Shaw Pittman LLP
Kevin Fong Pillsbury Winthrop Shaw Pittman LLP

 

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their reservation's lands.2 62 7229pakootas v. teck cominco metals [4] the jurisdictional bar applies to "challenges to removal ongoing, not past, violations. the court denied certiorari, so section 9606(a) of this title, in any action except one these were the "challenges" the statute " `withholds federal it does not. in that case, such a claim for civil penalties for teck cominco's 892 days of noncom- 10 34 [10] thus what pakootas and michel seek is not a penalty n.11)). 15 an action under [42 u.s.c. § 9659] (relating to citizens suits) alleging that 7228 pakootas v. teck cominco metals section (h)(2) does not apply to citizens suits. both sides cite joseph a. pakootas, an individual be involved, a court should try to put itself in imagination in the position 17 and assessment, as well as declaratory relief regarding the rea- eral administrative order, and properly dismissed their claims. (emphasis added). a citizen suit to take away this compliance device before the remedial action pursuant to the contract, because all they seek ton ry. co. v. reid, 80 u.s. 269, 270 (1871))). order.10 9 with ongoing cleanup efforts, because of its potential effect on counsel for the parties, evidently specialists in environmental law, [6] under the agreement, the united states covenanted not interfere with the remedial actions selected . . . ."41 regarding a rule's nature." (citing arbaugh, 546 u.s. at 514-16, and claim for the epa to recover money it has chosen not to it was not a citizen suit for penalties, nor did it 64 for certiorari in this case in 2007. 30 washington, for the appellants. (h)(2) would thus be surplusage if a suit for past penalties and only the government has that prerogative. penalties for the 892 days of noncompliance with the unilat- court adopted a "readily administrable bright[-]line" test.26 almost invariably are such instances, in which, because of the perfect fit ary 12, 2004 from g. leonard manual to michael f. gearhead." same thing." catholic league for religious and civil rights v. city and mode, it includes a negative of any other mode' " (quoting raleigh & gas- ment in penalties and to the lawyers in fees cannot go from [13] as the district court correctly concluded, it lacked pakootas i, 452 f.3d at 1070. court shall have jurisdiction . . . to review any challenges to removal or as appellants argue, that no suit is a "challenge" unless it does not make sense to read the statute as though it allowed 11 hammer, but also as a means by which teck cominco can joseph a. pakootas, an individual list.3 and michel's hammer to wield. the penalties are the epa's for documents is not a challenge to an ongoing cleanup, not elsevier, inc. v. muchnik, focusing on whether the word "ju- 59 we held that the law- act (cercla). the fines are paid to the 40 zen suit could escape the limitations and the exception to the pany together with its american subsidiary, and the epa, the pliance with the unilateral administrative order, and for costs . . . in section 9613(h) of this chapter relating to timing."61 colville reservation, ties for violations of those orders under § 9606(a),70 68 7227pakootas v. teck cominco metals unius, principle."67 mcclellan, 47 f.3d at 329. must look at it as a bad man, who cares only for the material consequences plaint states a claim upon which relief can be granted, but it is not the speak in jurisdictional terms or refer in any way to the jurisdiction of the [7] in addition, penalties exacted before a cleanup is com- limits jurisdiction or simply affects whether a claim for relief id. m. hart jr. & albert m. sacks, the legal process 1414-15 (tent. ed. ments and several cases where we had held that citizen suits for the eastern district of washington in addressing that downstream "facility."15 true, plaintiffs seek only past penalties, not any additional this length of time could be very costly for teck cominco, as the statu- 54 epa's head. (briefed), assistant attorneys general, olympia, washington, plaint to seek the anticipated costs of the cercla recovery id. at 1070. in their second amended complaint, plaintiffs allege that united states court of appeals to pay $24 million in penalties and possibly a great deal of investigation and feasibility study, at 22 (june 2, 2006), available at confederated tribes of the 11, 2003, or (ii) for performance of the r[eme- rhoades v. avon products, inc., 504 f.3d 1151, 1156 (9th cir. 2007) 429 f.3d 1224, 1228-29 (9th cir. 2005) ("for example, remedial actions establish that the statute merely regulates timing, and is not a might not be resolved for several years. declaratory and injunctive relief, but maintaining their claims colville reservation, 2:04-cv-00256-lrs are provided for in 42 u.s.c. § 9659. that provision subjects subsection (h)(2) is thus for the govern- penalties while remediation is ongoing is a challenge, the id. ment, so that it can wield its own hammer during the cleanup true jurisdictional statute. that citizen suits are not allowed under subsection (h)(2). bar for actions "to enforce an order issued under section remedial action.21 tion. jurisdiction to adjudicate the pakootas and michel claims for mcclellan ecological seepage situation v. perry, the statute 43 subsection (h)(4) is the exception for citizen suits. it makes seeking: (1) a declaration that teck cominco unless the exception applies, since without the exception, we threat of bankruptcy as their own hammer to hold over the 16 i. facts 7213pakootas v. teck cominco metals appellants argue that they make no challenge to the ongoing see 42 u.s.c. § 9606(b)(1); see also 73 fed. reg. 75,340, 75,340-46 motion. we held that the suit was not an extraterritorial appli- id. pakootas i, 452 f.3d at 1070. tinues."); see also 73 fed. reg. 75,340, 75,340-46 (dec. 11, 2008) (setting citizen suits for penalties fall within the subsection (h)(2) withtheissue."27 "where a remedial action is to be undertaken at the site."66 attributed to a statute, and to any subordinate provision of it which may 71 see american heritage dictionary 1035 (2d coll. ed. 1985). the court reemphasized this bright-line test last year in reed grounds." (quoting arbaugh, 546 u.s. at 515)). because sites on it are top priorities for cleanup and are eligi- that conditional covenant not to sue means that as we held in [12] we have found no circuit court authority to aid us in monthly at 56 (june 1992) (describing how a cold-weather battery manu- see id. at 1115. kleinfeld, circuit judge: away from further cleanup efforts, an "efficient breach."44 28 (1) is the pakootas-michel suit for penalties a national priorities list."). (hereinafter, pakootas i). thus, this exception to jurisdiction stripping arco, a potentially responsible party, sued a state of mon- 50 within the state of washington.16 of cercla,11 see 42 u.s.c. § 9605(c); see also united states v. w.r. grace & co., agreement, and is conditioned upon the satisfactory performance tribes of the coville reservation; no. 10-35045 the unilateral plaintiffs argue alternatively that even if a citizen suit for of orders issued under 42 u.s.c. § 9606(a). such penalties are statute's scope shall count as jurisdictional, then courts and tract holds over teck cominco's head not only works as a plaintiffs appeal. confederated tribes of the coville 7207 by means of the that word means, in the epa as an enforcement or cost recovery action for the super- 42 u.s.c. § 9606(b). pakootas i, 452 f.3d 1066 (9th cir. 2006). id. at 516. "amounts to a `blunt withdrawal of federal jurisdiction.' "36 29 united states environmental protection agency, agreement for remedial cleanup. the $24 million in potential penalties that the con- 270 f.3d 1129 (7th cir. 2001). that list is colloquially called the "superfund list" ing to citizens suits) alleging that the removal or 7219pakootas v. teck cominco metals may be sought.60 member of the confederated tle the matter by contract. with the law as it was, have enacted this new law to replace it? . . . . the reasons, canadian government concerns about canadian sov- v. wereviewadistrictcourt'srule12(b)(1)dismissaldenovo.20 teck cominco metals, ltd. v. pakootas, 552 u.s. 1095 (2008). id. at 515-16; see also henderson v. shinseki, no. 09-1036, slip op. risdiction"wasusedinasentencecontrollingtheclaimatissue.29 judgment in a lawsuit."56 concerns and other litigation hazards would rise again.45 this statutory scheme becomes much easier to interpret if see pakootas v. teck cominco, 452 f.3d 1066, 1069 (9th cir. 2006) solicitor general on the extraterritoriality issue with the previous petition can be stated.23 36 as a party plaintiff. subsequently, the state amended its com- which the united states has moved to compel a that challenges are limited to the four cases arco distinguish- it, the epa and teck cominco settled. the settlement went unnecessary memorization of acronyms. see northern cheyenne tribe v. 7225pakootas v. teck cominco metals express the views of the united states. the solicitor general, and this is confirmed by the court having invited for the views of the 7222 pakootas v. teck cominco metals 70 42 u.s.c. § 9659. plaintiffs-appellants, refer to the unilateral administrative order as a "uao." we use the can bring down its hammer, by seeking penalties of up to that arco distinguished. the holding of arco is that a suit we recently acknowledged that a jurisdictional limitation, such as (2010) ("when a statute gives no clear indication of an extraterritorial u.s.c. § 9606(b)(1) ("(1) any person who, without sufficient cause, will- a challenge. rev. 457, 459 (1897) ("if you want to know the law and nothing else, you cominco did not comply with the order.8 but were not a "challenge[ ]." cleanup, to impose additional reporting requirements, or to court shall have jurisdiction . . . to review any challenges to removal or approach is suited to capture congress' likely intent and also provides plaintiff-intervenor-appellee, istrative order, "conditioned upon the satisfactory perfor- because a "site" where a hazardous substance has "come to which such knowledge enables him to predict, not as a good one, who teck cominco moved to dismiss for lack of subject matter 72 first, teck cominco and the epa made a deal to accom- noncompliance with that order.18 and that purpose, as we cla, we held that the epa was not acting extraterritorially to cleanup standards) to review any challenges to guage, we would be doing just the sort of "wrestl[ing]" colville reservation; donald r. . . . for each day."59 id. see id.; arbaugh, 546 u.s. at 515-16; bodine v. graco, inc., 533 f.3d epa retained to compel performance of the agreement. if enrolled member of the ment between the state of montana and the epa relating to cleanup process.64 affirmed. 2:04-cv-00256-lrs or secured under section 9606 of this title was in vio- recover penalties. the epa could seek penalties without sub- otherwise alter the cleanup plan.47 sive environmental response, compensation, and liability regulation, not a limitation on jurisdiction. we disagree. here english language here and elsewhere to avoid taxing the reader with are penalties for the 892 days of past noncompliance with the teck cominco metals limited (teck cominco), a cana- pollution flowed downstream into the united states. held that the 120-day deadline for filing appeals in veterans for intervenor-appellant state of washington. 130 s. ct. 1237, 1244-45 (2010) (discussing arbaugh and choosing to ington.1 contract. and pursuant to the contract, the epa withdrew the district court erred in both respects, and also that these statu- a person who without sufficient cause fails to comply with an 581 f.3d 865 (9th cir. 2009). $27,500 a day for 892 days,43 and city of rialto v. west coast loading corp.,73 guage, including the word "recover."55 48 mcclellan, where the epa works out a plan, and a citizen suit the polluter to the contractors who perform the cleanup work. id. at 1115-16. remedial action taken under section 9604 of this title 7217pakootas v. teck cominco metals that is proceeding in district court. the colville tribes have in this case,71 be assumed for this or for all cases. many polluters do not canadian corporation, we consider the sections together, to figure out what rational michael l. dunning (argued), and kristie e. carevich "jurisdiction-stripping provision contained in 42 u.s.c. 60 1145, 1148 (9th cir. 2008) ("because [49 u.s.c. ]§ 32710(a) `does not minco] of their obligations under this agreement. zen suits and under non-cercla statutes, that are found to id. from march 16, 2004 through january 12, 2009 at $32,500). l42 u.s.c. § 9606(b)(1). in 1999, the colville tribes petitioned the environmental t[eck ]c[ominco ]a[merican ]i[ncorporated]. this covenant not suit to obtain access to documents "involves only the public's [2] subsequent to the seventh circuit's decision, the 38 colville reservation and donald "if 22 cir. 2009). were "challenges." but our decision in arco does not hold, or use the quoted in context above. f0070bd8b/f0e551fb8a69dcd288256fac00064739/$file/teckcominco_ with the conclusion reached in fairchild semiconductor washington for response costs or damages from the cleanup the current maximum monetary penalty amount for noncompliance at jurisdiction to review . . . claims, including those made in citi- order for interlocutory appeal.13 the penalty money is superfund money, `clear' indication that congress wanted the rule to be `jurisdictional.' this superfund. if we had jurisdiction, there would be a serious dictate specific remedial actions or reporting requirements or id. id. at 512. tion of whether congress intended cercla to apply extraterri- see id. this interpretation. plaintiffs urge us to follow a district court eral law other than under section 1332 of title 28 tion in 2003, determining that the upper columbia river site 7214 pakootas v. teck cominco metals while that appeal was before of words and context, the meaning seems unmistakable . . . . what is cru- opinion exception. now we are. we conclude that they do not. application, it has none."). the supreme court's recent decision in morri- is the relevant statutory language: such an action may not be brought with regard to a removal where a reme- lack jurisdiction. litigants will be duly instructed and will not be left to wrestle ble for cercla-financed remedial action.4 was eligible for inclusion on cercla's national priorities the responsible party's financial ability to perform the denoted in § 9606(b) as "fines."57 66 [9606(a)] of this title or to recover a penalty for violation of 2011). 49 (2) an action to enforce an order issued under sec- some polluters, facing a suit for past penalties while cleanup (5) an action under section 9606 of this title in filed june 1, 2011 so sub- 7226 pakootas v. teck cominco metals urge, dancing around subsection (h)(4)'s citizen suit provision see, e.g., charles goetz & robert scott, liquidated damages, penal- 20 norton, 503 f.3d 836, 839 n.1 (9th cir. 2007); longview fibre co. v. ras- remedial action . . . in any action except one of the following: . . . . (4) section 9613(h)(2) provides an exception to the jurisdictional and that citizen suits for penalties could be brought only for mcclellan ecological seepage situation v. meanwhile, teck cominco had petitioned for certiorari getting back of something lost," or "[t]o receive a favorable complications arose from, among other while the epa's investigation was still ongoing in 2002, into effect in june 2006. teck cominco, the canadian com- supreme "court and others have been less than meticulous" title or to recover a penalty for violation of such order[,]" and 7221pakootas v. teck cominco metals pakootas i, 452 f.3d at 1070. like they founded jurisdiction on the citizen suit provision that the case was moot because of the settlement agreement, [5] congress made a choice to "protect[ ] the execution of 58 to sue shall take effect upon the effective date of this settlement 7208 pakootas v. teck cominco metals payable to the government, not payable to citizens who bring § 9613(h)(2)'s exception. we generally agree with the district counsel penalties for the 892 days of noncompliance was a challenge 7224 pakootas v. teck cominco metals § 9613(h)."34 we affirmed the district court's denial of teck cominco's id. at 330. from january 31, 1997 through march 15, 2004 at $27,500 per day, and ply; and (4) attorneys' fees and costs.12 violation of such order. 7212 pakootas v. teck cominco metals action may not be brought with regard to a removal neither sought nor waived. they are the epa's hammer, held ties, and the just compensation principle, 77 colum. l. rev. 554, 578 this careful structuring by congress would be gutted if a citi- denied teck cominco's motion to dismiss, but certified the cation of cercla because even though the smelter was in id. at 1111. this context, to get money. ordinarily, "recover" "refers to the allows the government to enforce its orders and recover pen- added the same demand as the state, and these claims are now unilateral administrative order. to this day, the epa has taken went bankrupt, and left for russia to manufacture batteries there instead). not speak in jurisdictional terms.30 es.52 ulation for a consent decree or other court order) to perform son shows the court's interest in the extraterritorial application of statutes, 42 u.s.c. § 9613(h)(2). terminate or alter a cleanup.51 or remedial action . . . ."37 from our decision. the supreme court, evidently considering order such as the one at issue in this case "may . . . be fined in the columbia river, ten miles north of the border with wash- 73 56 the removal or remedial action taken under [42 u.s.c. § 9604] or secured 42 u.s.c. § 9613(h). bia. from 1905 to 1995, slag from the smelter was dumped interfere with the expeditious cleanup effort."39 fairchild semiconductor corp. v. epa, 769 f. supp. 1553 (n.d. cal. zen suits are allowed under subsection (h)(4) for claims that ties entitled to "recover" the penalties for the 892 days of non- torially.17 7 compliance, then the exception would apply to them. but they on the motion to dismiss, the state of washington intervened plaintiffs argue that both the title of the subsection, "tim- the provisions for a citizen suit in subsection (h)(4) imply it makes sense that if the polluter is not per- opinion county of san francisco, no. 06-17328, ___ f.3d ___, 2010 wl for each day in which such violation occurs or such failure to comply con- 213 f.3d 1108 (9th cir. 2000). 4 42 u.s.c. § 9613(h). pleted may interfere with the ability to perform a cleanup. teck cominco metals, ltd., a 31 purpose congress might have had.63 ties for the 892 days of past noncompliance, and resolution of [3] here, the statute says "[n]o federal court shall have and trying to use the different exception in subsection (h)(2). and enrolled member of the sense in this statute to apply "the expressio unius, or inclusio action against t[eck ]c[ominco] and t[eck ]c[ominco ]a[meri- battery-maker earl romans takes his expertise to russia, alaska bus. settlementagreement.pdf. we agree ronmental quality limits "challenges" to claims that would "wants more," that constitutes interference.40 lawsuits. 21 us, the confederated tribes of the colville reservation joined teck cominco metals, ltd., a ("we review de novo dismissals under rules 12(b)(1) and 12(b)(6)."). supp.2d 226, 233 (d. puerto rico 1998). 42 u.s.c. § 9613(h). payable to themselves, but enforcement of a penalty payable such order."62 cleanup is complete. and that pragmatic arrangement is the (1977); cf. oliver wendell holmes jr., the path of the law, 10 harv. l. 69 stipulated rule 54(b) certification of its dismissal order, id. tion in the columbia river and lake roosevelt, which border argued and submitted one the words of the statute adopt. 61 d.c. no. recover at this time, but we cannot even consider that question tory limitations go only to whether a claim upon which relief terms of the u[nilateral ]a[dministrative ]o[rder] by its letter dated janu- posed to be irrational."). compliance; (3) penalties for teck cominco's failure to com- pakootas and michel were to enforce the penalties, the epa because appellants would have us parse the word 42 u.s.c. § 9613(h) (emphases added). teck cominco to enforce the epa's unilateral administrative 1958) ("in determining the more immediate purpose which ought to be 45 confederated tribes of the c. douglas floyd (argued), and kevin m. fong (briefed), pil- 7216 pakootas v. teck cominco metals [9] the penalty provision speaks to penalties for violation iii. conclusion about when statutes should be deemed "jurisdictional."24 forming its cleanup duties, then the epa can swing its ham- are not. affect in any way the ongoing cleanup.49 tive order for 892 days: from its original issuance on december 11, 2003 perform the cleanup or pay the money to the government. id. at 1074. no action to collect penalties for teck cominco's 892 days of ment of the fine or a portion thereof "from the [super]fund" if it deems that prudent, subsection (h)(4) is for citizen suits. d.c. no.petitioner-intervenor-appellant, 39 the relevant paragraph of the agreement is as follows: arbaugh, 546 u.s. at 516. the words are "[n]o federal court shall have jurisdiction," the the epa took no signed what they called a "contractual agreement" (not a stip- canada, slag had moved downstream into the united states.14 32 american incorporated, negotiated with the epa, but did not barred by 42 u.s.c. § 9613(h), and that it did not fall within 7211pakootas v. teck cominco metals before: arthur l. alarcón, andrew j. kleinfeld, and 2 mussen, 980 f.2d 1307, 1308 n.1 (9th cir. 1992). tioned application of the statute. even in the case of a new statute there requirements for the ongoing cleanup. but that demand is still subsection (h)(2) does not apply to citizens suits. plaintiffs injunctive relief for non-compliance with the unilateral adminis- appellants argue that our decision in arco environmental where a remedial action is to be undertaken at the confederated tribes of the 52 appropriate under section 9621 of this title (relating december 2003 issued a unilateral administrative order.6 reservation, 18 that language expressly addresses juris- mance" by teck cominco of its obligations under the ifnot,thentherestrictionisnonjurisdictional.28 "challenge"? 6 protection agency (epa) to assess environmental contamina- 55 contract. the epa covenanted not to sue for penalties or in the united states district court "solely for the limited pur- 12(b)(1) for lack of jurisdiction. the district court granted a see, e.g., mcclellan ecological seepage situation v. perry, 47 f.3d longview fibre co. v. rasmussen, 980 f.2d 1307, 1312-13 (9th cir. helpful guidance for courts and litigants, who will be `duly instructed' most reliable guides to an answer will be found in the instances of unques- 65 to sue for the penalties for the 892 days, "conditioned upon v. id. that only the government may issue orders or recover penal- lsbury winthrop shaw pittman llp, san francisco, califor- ii. analysis (1) an action under section 9607 of this title to action to enforce an order issued under section 9606(a) of this finds his reasons for conduct, whether inside the law or outside of it, in defendant-appellee. [t]he united states covenants not to sue or to take administrative until it was withdrawn on june 2, 2006 by the settlement with the epa. see henry m. hart, jr. & albert m. sacks, the legal process 1378 (3) an action for reimbursement under section at 6 (s. ct. mar. 1, 2011) ("under arbaugh, we look to see if there is any cial here is the realization that law is being made, and that law is not sup- fund.58 the epa completed its investiga- court's careful analysis and affirm. appellants argue that the sonable persons pursuing reasonable purposes reasonably . . . . the court (dec. 11, 2008) (listing the maximum penalties rate for noncompliance an action to enforce an order issued under section 9606(a) of this title or 5 no voluntary agreement was reached, so the epa in ing of review," and a seventh circuit decision, frey v. epa,22 alties pakootas and michel want to enforce are the hammer id. tion 9606(a) of this title or to recover a penalty for can ]i[ncorporated] pursuant to sections 106 and 107(a) of cer- and right of access to information about the cleanup," so it was the word "penalty." we must read all of the statutory lan- exception in subsection (h)(4). yet that is just what plaintiffs squeezed dry. and if it is, whatever juice going to the govern- district courts,' it was improper to dismiss this case on jurisdictional and personal jurisdiction, and for failure to state a claim upon site. (relating to diversity of citizenship jurisdiction) or confederated tribes of the defendants a (more thoroughly rea- is ongoing, may simply go bankrupt and leave,46 57 obligations.42 67 court was nonjurisdictional because the provision at issue did under state law which is applicable or relevant and while that appeal was pending, but before we had decided point, all the risks to its position raised by extraterritoriality proceeding in district court. constitute `challenges' to ongoing cercla cleanup actions."38 m.r. (vega alta), inc. v. caribe general elec. products, inc., 31 f. a reading is appropriate. but it does not suffice to only read id. at 1068. because pakootas and michel had no claims except for penal- we address citizen suit jurisdiction under the comprehen- plaintiff, [8] a citizen suit for penalties is indeed a "challenge[ ] to for epa to bring an enforcement or cost recovery action -- are exclu- the legislature clearly states that a threshold limitation on a are only eligible for superfund financing when the site is listed on the canadian corporation, richard r. clifton, circuit judges. removal or remedial action selected by epa . . . ."53 withdrawn unilateral administrative order. teck cominco was out of compliance with the unilateral administra- ereignty and the american assertion of jurisdiction. in the litigation and sought the same relief. the district court (2) does the penalty exception apply? 546 u.s. 500, 511 (2006). sive."). trative order issued by epa to t[eck ]c[ominco] on december eral court shall have jurisdiction" because of the timing lan- 37 id. at 1071. 53 by t[eck ]c[ominco ]a[merican ]i[ncorporated] and t[eck ]c[o- assess the site conditions and to implement a cleanup.7 610 f.3d 110, 115 (d.c. cir. 2010) ("central to this case, these two remedial action . . . in any action except one of the following: . . . . (2) henderson v. shinseki, no. 09-1036, slip op. at 8-9 (s. ct. mar. 1, 9606(b)(2) of this title. a. is 42 u.s.c. § 9613(h) jurisdictional? 26 to the superfund. such a lawsuit is not one to "recover" 19 state of washington, supreme court clarified how to determine whether a statute the vaguer sanctions of conscience."). argue for a "plain language" reading, and we agree that such the contrary unmistakably appears, that the legislature was made up of rea- case from puerto rico,68 and attorneys' fees. teck cominco once again moved to dis- 42 44 [1] plaintiffs argue that 42 u.s.c. § 9613(h) is a timing miss. the district court dismissed the claims under rule 35 diction, satisfying the bright-line test of arbaugh.32 snippets of language from our decisions in our earlier decision the operative words of subsection (h)(2) are as follows: "no federal 42 u.s.c. § 9606(b)(2). lation of any requirement of this chapter. such an we note that even id. id. at 1560-61. soned) district court case from our own circuit.69 have unlimited financial resources. sometimes the orange is statute limits the timing of judicial review33 reach an agreement.5 jurisdiction . . . ."31 lonny r. suko, chief district judge, presiding 12 r. michel, an individual and rejecting what it called "drive-by jurisdictional rulings,"25 dial action is to be undertaken at the site." 42 u.s.c. § 9613(h)(4). zen suit exception (so that jurisdiction remains absent), opinion by judge kleinfeld michel, an individual and enrolled "would second-guess the parties' determination and thus city of rialto v. west coast loading corp., 581 f.3d 865, 869-71 (9th http://yosemite.epa.gov/r10/cleanup.nsf/7780249be8f251538825650 the remaining claims of the colville tribes and the state of injured by the pollution. the statutory scheme provides that states district court to enforce such order, be fined not more than $25,000 (william n. eskridge, jr. & philip p. frickey eds., 1994) (1958); 2 henry 325, 330 (9th cir. 1995). order commands teck cominco and its american subsidiary the satisfactory performance" by teck cominco of its cleanup "apply this same approach to [17 u.s.c.] § 411(a)"). and still have plenty of money left for a cleanup, that cannot tory fines for violating an order on a daily basis quickly add up. see 42 plaintiffs-appellees, urging denial of certiorari, filed an amicus brief arguing both we did not reach the ques- teck cominco and its american subsidiary, teck cominco as we held in was in violation of the order; (2) an injunction compelling corp. v. epa that the (h)(2) exception applies only to "[a]n "[s]tanding, or the lack of it, may be intertwined with whether the com- 51 were we to wiggle around the words "[n]o fed- 1991), aff'd, 984 f.2d 283 (9th cir. 1993). arbaugh, 546 u.s. at 516. of the following: no federal court shall have jurisdiction under fed- over teck cominco's head. the penalties are not pakootas options -- comply and seek reimbursement, or refuse to comply and wait 4138432, at *2 (9th cir. oct. 22, 2010) (en banc). 1992) (noting that " `when a statute limits a thing to be done in a particular 13 7220 pakootas v. teck cominco metals could be granted was stated, and not jurisdiction. teck cominco "unequivocally indicated its intent not to comply with the nia, for the appellee. in none of those cases were we faced with deciding whether and even more recently in henderson v. shinseki, the court remediation. teck cominco consented to personal jurisdiction (4) an action under section 9659 of this title (relat- plaintiffs then amended their complaint, no longer seeking statute means that no federal court shall have jurisdiction. the 9604 of this title, or to review any order issued under have said, is to prevent lawsuits that would interfere with the they are not disbursed to persons claiming to be see ingrid martin, spark seeks to ignite new markets: fairbanks paul j. dayton, short cressman & burgess, pllc, seattle, the separate citizen suit exception that congress provided defendant-appellant. mer without waiting for years until the cleanup is done. it done, it might find it economically advantageous to walk in appropriate circumstances, reimburse- the petition quite seriously, invited the solicitor general to 1 8 question as to whether pakootas and michel could state a 23 see 42 u.s.c. § 9613(h); see also general electric co. v. jackson, 7215pakootas v. teck cominco metals under [42 u.s.c. § 9606] was in violation of any requirement of this act. to recover a penalty for violation of such order." 42 u.s.c. § 9613(h)(2) alties for violation of them even when a cleanup is ongoing. 47 f.3d 325 (9th cir. 1995). 33 42 u.s.c. § 9659(a)(1). while teck cominco may, for all we know, have the ability finally, if suits for penalties are not "challenges," congress tana agency to get access to documents pertaining to an agree- the operative words of subsection (h)(4) are as follows: "no federal 46 no. 08-35951 pose of an action to enforce" designated provisions of the if teck cominco does not perform its obligations, the epa plish the cleanup. part of their contract is that the penalties are in this circumstance, congress wrote an exception to this citi- to the jurisdiction-stripping statute bolsters this reading. citi- remediation, llc. v. montana department of health & envi- 7223pakootas v. teck cominco metals be located" falls within the definition of a "facility" in cer- plaintiffs joseph a. pakootas and donald r. michel sued for publication a cercla plan during its pendency from lawsuits that might a suit for past penalties always has the potential to interfere (h) timing of review all litigation, a lawsuit against teck cominco could go sour injunctive relief for noncompliance with the unilateral admin- more than $24 million. the pen- seeks to dictate specific remedial actions, to postpone the appeal from the united states district court removal or remedial action selected under section cla, 42 u.s.c. §§ 9606 and 9607(a) . . . for (i) civil penalties or $37,500 per day). "incidental" in the decision, and infer a negative pregnant recover response costs or damages or for contribu- not a "challenge."50 27 id. at 869. and enrolled member of the from the distinction arco drew between the suit for docu- citizen suits to the § 9613(h) exceptions: "except as provided to conduct a remedial investigation and feasibility study to arbaugh v. y & h corp. concedes that the under subsection (a) may, in an action brought in the appropriate united also, were the epa to seek to enforce the agreement at that money. it is one to compel the payment of money to the which relief could be granted. before the district court ruled 47 41 they rely on subsection (h)(2),54 see, e.g., morrison v. nat'l australia bank ltd., 130 s. ct. 2869, 2878 7218 pakootas v. teck cominco metals cominco paid the parties adjudicated before the cleanup was perry,72 24 would not have had to make an exception for epa suits to 63 sonable costs of assessing natural resource damages, a claim pakootas i, 452 f.3d at 1070. action to enforce it.9 section (h)(2), if penalties were not "challenges." subsection for the epa. no doubt that risk played into its decision to set- 14 hammer. fully violates, or fails or refuses to comply with, any order of the president [11] citizen suits for specified relief, including penalties, a cleanup.48 facturer, faced with a $3.2 million superfund liability, closed his business, additional money to pakootas and michel for attorneys' fees, of the legislature which enacted the measure . . . . it should assume, unless the district court held that the pakootas-michel claim for dial ]i[nvestigation]/f[easibility ] s[tudy] costs paid by b. does the jurisdictional bar apply? 47 f.3d 325, 328 (9th cir. 1995). dian mining company, owns a smelter in trail, british colum- the remediation itself violates the statute.65 these arguments were not ruled upon.19 25 november 6, 2009--seattle, washington 3 teck if pakootas and michel were the par- state of washington, should then proceed to [ask] . . . why would reasonable men, confronted for the ninth circuit administrative order, we held, was addressed to this "facility" "seeks to improve on the cercla cleanup" because it jurisdiction-stripping statute has an exception for such suits. arbaugh rejects in favor of a bright-line test.35 would be left bare-handed, without this weapon. and if teck


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