Joseph Pakootas v. Teck Cominco Metals, Ltd., 646 F.3d 1214

Teck Cominco Canadian smelter dumped slag into the Columbia River (1905–1995) causing downstream US contamination.
EPA investigated; site deemed eligible for CERCLA National Priorities List; funding for cleanup contemplated.
EPA issued a unilateral administrative order in Dec 2003 mandating a RI/FS and cleanup; Teck Cominco did not comply.
Settlement in June 2006: EPA, Teck Cominco, and US reached a contract to perform cleanup; EPA withdrew the order; penalties not pursued by the EPA.
Pakootas and Michel sued for civil penalties for 892 days of noncompliance; district court dismissed for lack of subject-matter jurisdiction; affirmed on appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §9613(h) is jurisdictional.	§9613(h) is a timing provision, not a jurisdictional bar.	§9613(h) expressly withdraws jurisdiction and is jurisdictional.	Section 9613(h) is jurisdictional.
Whether Pakootas–Michel penalties constitute a "challenge" to removal/remedial action.	Penalties for past noncompliance are not a challenge to ongoing cleanup.	Penalty claims interfere with ongoing CERCLA remediation and are challenges.	Penalties for past noncompliance are a challenge to ongoing action.
Whether the §9613(h)(2) exception for enforcement of an order or penalty applies to citizen suits.	Exception permits citizen suits for penalties in ongoing cleanup.	Exception applies only to government actions, not citizen suits.	§9613(h)(2) does not authorize citizen suits for penalties.

McClellan Ecological Seepage Situation v. Perry, 47 F.3d 325 (9th Cir. 1995) (jurisdictional withdrawal to protect cleanup during CERCLA action)
ARCO Environmental Remediation, LLC v. Montana Department of Health & Environmental Quality, 213 F.3d 1108 (9th Cir. 2000) (suit for access to documents not a challenge to ongoing cleanup; distinguishes penalties)
City of Rialto v. West Coast Loading Corp., 581 F.3d 865 (9th Cir. 2009) (context for jurisdictional limits and timing provisions)