Joseph Pakootas v. Teck Cominco Metals, Ltd.
905 F.3d 565
| 9th Cir. | 2018Background
- Teck Metals (Trail smelter, British Columbia) discharged roughly 9.97 million tons of slag and contaminated effluent into the Columbia River from ~1930–1995; large quantities of lead, zinc, cadmium, arsenic, mercury, and other contaminants migrated downstream into the U.S. Upper Columbia River used by the Confederated Tribes of the Colville Reservation.
- Tribes petitioned EPA; EPA ordered an RI/FS; litigation followed (citizen suit joined by State of Washington and Tribes). Prior interlocutory appeals upheld application of CERCLA and arranger liability theory.
- Litigation was trifurcated: Phase I (PRP/arranger liability and personal jurisdiction), Phase II (response costs), Phase III (natural resource damages). District court found Teck liable as an arranger and entered partial judgment under Rule 54(b).
- District court awarded the Tribes ~$3.39M in investigative (removal) costs and ~$4.86M in attorney’s fees, treating the investigations as recoverable removal-response costs and fees as recoverable enforcement-related costs under CERCLA §107(a)(4)(A).
- Teck raised multiple defenses on appeal: (1) Rule 54(b) certification improper; (2) lack of personal jurisdiction; (3) Tribes cannot recover investigation costs or attorney’s fees under CERCLA; and (4) its divisibility defense to joint-and-several liability should have survived summary judgment.
Issues
| Issue | Plaintiff's Argument (Colville Tribes / State) | Defendant's Argument (Teck) | Held |
|---|---|---|---|
| Rule 54(b) certification | Certification appropriate to allow immediate appeal of response-costs judgment | Certification premature; claims are part of a single CERCLA cause and must await full resolution | Affirmed: district court did not abuse discretion; response-cost and NRD claims are distinct claims for 54(b) purposes |
| Personal jurisdiction | Washington has specific jurisdiction: Teck intentionally dumped into Columbia River knowing wastes would reach WA | Calder "effects" test inapplicable; discharges were aimed at the river, not WA | Affirmed: Calder applies; Teck expressly aimed tortious conduct at WA by dumping into river that carried waste into State |
| Recoverability of investigation costs (removal) | Investigatory sampling, fingerprinting, and related studies are within §101(23)/(25) removal/response definitions; costs recoverable under §107(a)(4)(A) | Investigations are litigation-related and thus not recoverable as removal costs | Affirmed: investigatory costs are recoverable as removal/response costs; timing or litigation connection does not bar recovery |
| Recoverability of attorney’s fees | Tribal sovereigns can recover reasonable attorney’s fees as enforcement-related response costs under §107(a)(4)(A) post-SARA and under Chapman | Chapman is inapplicable; tribes lack delegation/enforcement authority; fees not "related to" response actions | Affirmed: Chapman controls; tribes (as sovereign plaintiffs) may recover reasonable attorney’s fees as enforcement-related response costs |
| Divisibility defense to joint-and-several liability | Teck: harm is divisible; expert apportionment shows negligible share attributable to Teck | Tribes/State: harm is the whole-site contamination (many contaminants mixed), and Teck failed to account for total harm; no reasonable apportionment basis | Affirmed: summary judgment for plaintiffs; Teck failed to show harm was theoretically divisible or provide a reasonable apportionment method |
Key Cases Cited
- Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1 (1980) (Rule 54(b) requires final disposition of individual claim and no just reason for delay)
- Calder v. Jones, 465 U.S. 783 (1984) (effects test for purposeful direction in tort suits)
- Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599 (2009) (divisibility analysis guided by Restatement §433A; burden on defendant)
- Key Tronic Corp. v. United States, 511 U.S. 809 (1994) (SARA amendment—‘‘enforcement activities’’—and limits on private fee recovery under §107(a)(4)(B))
- United States v. Atlantic Research Corp., 551 U.S. 128 (2007) (CERCLA liability and allocation of burdens on causation and cost recovery)
- United States v. Chapman, 146 F.3d 1166 (9th Cir. 1998) (governmental entities, including tribes, may recover attorney’s fees as response/enforcement costs under §107(a)(4)(A))