Nu-West Mining, Inc. v. United States, 4:09-cv-00431

Nu-West seeks to recover cleanup costs for four Caribou-Targhee National Forest sites and moves for partial summary judgment on attorney fees.
The Government, a PRP, counters seeking its own attorney fees under CERCLA.
The Court previously held the Government is a PRP and liable for cleanup costs.
Nu-West argues CERCLA limits the Government’s attorney fees when it is a PRP.
The analysis hinges on CERCLA §9607(a)(4)(A) vs (a)(4)(B) and Chapman guidance.
The Court denies Nu-West’s motion and leaves fees to be determined in enforcement context in this case.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is the Government entitled to attorney fees as a PRP under CERCLA	Nu-West argues government fees are restricted because government is a PRP	Government argues CERCLA §9607(a)(4)(A) allows fees for enforcement	Yes; Government entitled to enforcement costs including attorney fees
Do private-party fee restrictions apply to the Government when it is a PRP	Nu-West contends private-party limits should apply to Government	Government contends no such limitation exists when acting as PRP	No limitation; Government retains right to certain fees
Does Fireman’s Fund limit Government’s recovery when it is a PRP	Nu-West relies on Fireman’s Fund to bar government fees	Fireman’s Fund not controlling here; no preemption issue	Not controlling; does not strip Government of CERCLA fees
Do §9607(a)(4)(A) and §9607(a)(4)(B) create different fee rights for Government vs private parties	Nu-West asserts different rights apply when government is PRP	Chapman interprets §9607; government rights exist	Statutory language precludes adding private-party limits to Government

Key Tronic Corp. v. United States, 511 U.S. 809 (1994) (private fees restricted to necessary costs, not enforcement actions)
U.S. v. Chapman, 146 F.3d 1166 (9th Cir. 1998) (government fees for enforcement actions permitted under §9604(b))
Fireman’s Fund Ins. Co. v. City of Lodi, 302 F.3d 928 (9th Cir. 2002) (government vs. municipal fees; preemption limited to CERCLA-contrary MERLO provisions)