CHEVRON MINING INC., Plaintiff-Appellant, v. UNITED STATES of America, United States Department of the Interior, and United States Department of Agriculture, Defendants-Appellees.
No. 15-2209
United States Court of Appeals, Tenth Circuit.
July 19, 2017
863 F.3d 1261
American Exploration & Mining Association, Colorado Mining Association, and State of Montana, Amici Curiae.
III. CONCLUSION
For the foregoing reasons, we affirm Mr. Pickel‘s convictions and his term of supervised release but reverse the forfeiture judgment and remand for resentencing regarding Mr. Pickel‘s forfeiture liability.
Katherine J. Barton, Environment & Natural Resources Division, United States Department of Justice (John C. Cruden, Assistant Attorney General, Simi Bhat, Justin D. Heminger, Dustin J. Maghamfar, John E. Sullivan, and Evelyn S. Ying, Environment & Natural Resources Division, United States Department of Justice, and of Counsel: Joan Marsan, Office of the Solicitor, United States Department of the Interior, and Kirk Minckler, Office of the General Counsel, United States Department of Agriculture, with her on the brief), Washington, D.C. for Appellees.
Gina Cannan and Steven J. Lechner, Mountain States Legal Foundation, Lakewood, Colorado, on the brief for Amici Curiae American Exploration & Mining Association and Colorado Mining Association.
Timothy C. Fox, Montana Attorney General, Alan Joscelyn, Chief Deputy Attorney General, and Dale Schowengerdt, Solicitor General, Office of the Montana Attorney General, Helena, Montana, on the brief for Amicus Curiae State of Montana.
Before TYMKOVICH, Chief Judge, BALDOCK, and BRISCOE, Circuit Judges.
TYMKOVICH, Chief Judge.
Under the federal environmental laws, the owner of property contaminated with hazardous substances or a person who arranges for the disposal of hazardous substances may be strictly liable for subsequent clean-up costs. In this case, the United States owned national forest lands in New Mexico that were mined over several generations by Chevron Mining Inc. The question we must resolve is whether the United States is a “potentially responsible party” (PRP), see, e.g.,
We conclude that under the Comprehensive Environmental Response, Compensa
Exercising jurisdiction pursuant to
I. Background
Over the last century, Chevron and its corporate predecessors mined molybdenum at a site near Questa, New Mexico, which we and the parties refer to as the “Questa Site.” This extensive mining generated significant amounts of hazardous substances, ultimately triggering costly clean-up requirements. Both before and after the Environmental Protection Agency (EPA)‘s 2011 decision to place the Questa Site on the National Priorities List (NPL), see
The particular mining and disposal activities relevant to this appeal are summarized below.
A. Mining Activities from 1919–2014
Molybdenum is a valuable mineral used in the production of military-grade steel and other materials. Molybdenum mining activities on the Questa mining lands pro
1. Initial Underground Mining and Exploration (1919–1964)
In 1919, the R & S Molybdenum Company of Denver opened an underground mine. The mine covered approximately 400 acres of mostly public land on which R & S Molybdenum held unpatented mining claims.4 The underground mine produced relatively small quantities of molybdenum and associated waste for several decades before R & S Molybdenum deemed its reserves exhausted in the 1950s and underground mining operations effectively ceased.
Meanwhile, Congress passed the Defense Production Act of 1950 (DPA) to “ensure the vitality of the domestic industrial base” to supply necessary “materials and services for the national defense.”
In 1957, R & S Molybdenum‘s successor-in-interest, the Molybdenum Corporation of America (Molycorp), entered into such a loan agreement with the DMEA. Molycorp and the DMEA executed an Exploration Project Contract, under which the federal government agreed to provide a loan covering up to $255,250 (i.e., half the estimated exploration costs) in exchange for Molycorp‘s agreement to conduct strategic exploratory mining on the Questa mining lands. Under the contract, all work was subject to government approval. App., Vol. 1, at 100 (“The location, direction, inclination, extent, and methods of sampling the work under the contract are subject to Government approval.“). Molycorp also agreed to repay the loan in the form of production royalties, provide monthly progress reports, and consult with and inform the government on all phases of the work as it progressed. At this point, Molycorp held twenty-one mining claims near Questa, all but two of which were unpatented.
Pursuant to the DMEA exploration contract, Molycorp conducted extensive exploration from 1957 to 1960 and eventually discovered a molybdenum ore deposit estimated to be 260 million tons in size. The Department of the Interior certified the discovery in 1960 and Molycorp began mining preparations.
2. Open-Pit Mining (1964–1983)
In 1964, Molycorp opened an open-pit mine to extract molybdenum from the ore deposit. The mine was a success and, at full capacity, produced more than four million tons of molybdenum annually (while simultaneously generating significant amounts of waste). By 1966, Molycorp fully
3. Renewed Underground Mining (1983–2014)
In 1983, Molycorp ceased open-pit mining operations and opened a new underground mine. Union Oil Company of California acquired the mine and, in 2005, Chevron acquired Union Oil. After several years with little or no mineral production, Chevron closed the underground mine in 2014.
B. Waste and Associated Disposal
The mining activities produced corresponding amounts of waste containing hazardous substances, now subject to CERCLA remediation. Approximately 150 thousand tons of waste rock were generated from the early underground mining operations, 328 million tons of waste rock and 75 million tons of “tailings”5 from the open-pit mining, and 25 million tons of tailings from the renewed underground mining.
The substantial amount of waste generated by these mining activities was not unexpected. When Molycorp first discovered the molybdenum ore deposit in 1960, for example, government engineers produced a “Final Geological and Engineering Report” estimating over 99% of the material extracted from the 260 million ton ore deposit would need to be discarded as waste. See App., Vol. 3, at 681-84. Nonetheless, the federal government actively encouraged—and, indeed, funded—Molycorp‘s mining activities at this site.
Hazardous substance disposal from the mines can be divided into two categories: (1) waste rock disposal; and (2) mine tailings disposal.
1. Waste Rock Disposal
Chevron and its corporate predecessors disposed of over 328 million tons of waste rock on land surrounding the open-pit mine. Although Molycorp initially held only unpatented mining claims on these lands, it eventually acquired fee title to 2,258 acres of national forest land around the perimeter of its open-pit mine (referred to as “the selected lands“) from the United States.6 In exchange for the selected lands, Molycorp traded to the United States approximately 246 acres of private land usable for public recreation, hunting, or other forest purposes. This land exchange was finalized in 1974.
2. Mine Tailings Disposal
Chevron and its corporate predecessors also disposed of over 100 million tons of
II. Analysis
Chevron seeks recognition of the United States as a PRP, both as an “owner” and “arranger,” liable for its equitable portion of costs to remediate the hazardous substances located at the Questa Site. These are questions of law that we review de novo in light of the factual record presented in the parties’ cross-motions for summary judgment, a record which is not in dispute and our review of which is also de novo. See Universal Underwriters Ins. Co. v. Winton, 818 F.3d 1103, 1105 (10th Cir. 2016);
We start with the relevant statutory background.
A. Statutory Background: CERCLA and the General Mining Act of 1872
1. CERCLA
CERCLA was designed “to promote the ‘timely cleanup of hazardous waste sites’ and to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination.” Burlington N. & Santa Fe Ry. v. United States, 556 U.S. 599, 602 (2009) (citation omitted). “The remedy that Congress felt it needed in CERCLA is sweeping: everyone who is potentially responsible for hazardous-waste contamination may be forced to contribute to the costs of cleanup.” United States v. Bestfoods, 524 U.S. 51, 56 n.1 (1998) (citation omitted). “[B]ecause CERCLA is remedial legislation, it should be construed liberally to carry out its purpose.” Atl. Richfield Co. v. Am. Airlines, Inc., 98 F.3d 564, 570 (10th Cir. 1996).
Proving that a defendant is liable in a contribution action under
CERCLA authorizes the President to designate certain facilities for remediation by placement on the NPL.
Under this “broad and detailed definition,” Bestfoods, 524 U.S. at 56, moreover, for purposes of establishing liability (as opposed to equitable allocation), a person is liable if that person meets CERCLA‘s definition of a PRP with respect to even a “portion of the total facility.” See Burlington N. & Santa Fe Ry., 556 U.S. at 618. In assessing whether the United States is liable here, therefore, we treat the entire EPA-delineated Questa Site as a single facility, even though it also might be conceptualized as numerous distinct parcels of land, sites, or areas, and the contaminated natural formations and objects on or in them. See
Turning to whether the United States is a PRP, and regardless of whether a facility lands on the NPL, CERCLA holds “covered persons“—i.e., persons8 liable for a release or threatened release of hazardous substances from the facility—strictly liable for remedial action and other necessary response costs.
Finally, under the contribution provision of CERCLA at issue here,
2. The General Mining Act of 1872
Chevron‘s claims arose from its right to exploit mineral deposits under the public lands of the United States. Under the General Mining Act of 1872, “all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States.”
Locators of mining claims, “so long as they comply with the laws of the United States, and with [s]tate, territorial, and local regulations ..., shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations.”
A mining claim is a parcel of land containing precious metal in its soil or rock. A location is the act of appropriating such parcel, according to certain established rules. It usually consists in placing on the ground, in a conspicuous position, a notice setting forth the name of the locator, the fact that it is taken or located, with the requisite description of the extent and boundaries of the parcel, according to the local customs, or, since the statute of 1872, according to the provisions of that act. Smelting Co. v. Kemp, 104 U.S. 636, 649 (1881). Under the General Mining Act of 1872, citizens may take steps to “locate” their mining claims by, at
Citizens may also seek to convert their general, “unpatented” mining claims into “patented” claims by following the process set forth in
Nonmineral lands, however, may only be patented if the property is less than five acres and is included in a patent application for land with valuable minerals (subject to the same survey and notice requirements set forth in
Given the legal background, this case requires us to harmonize liability provisions under CERCLA with the rights created by the General Mining Act of 1872 to determine whether the United States is a PRP and therefore required to equitably contribute toward cleaning up hazardous substances from mining operations on or under such land. We address owner liability first, and then turn to arranger liability.
B. “Owner” Liability
Chevron seeks recognition of the United States as an “owner” strictly liable for hazardous substances on the Questa mining lands. As we explain, we agree that the United States qualifies as a PRP because it owned portions of the land comprising the Questa Site. See Burlington N. & Santa Fe Ry., 556 U.S. at 618.
Owner liability attaches to “any person owning” the contaminated facility. See
The ordinary or natural meaning of “owner” includes, at a minimum, a legal title holder. See Own, Black‘s Law Dictionary (10th ed. 2014) (“To rightfully have or possess as property; to have legal title to.“); Owner, Black‘s Law Dictionary (10th ed. 2014) (“Someone who has the right to possess, use, and convey something; a person in whom one or more interests are vested. An owner may have complete property in the thing or may have parted with some interests in it (as by granting an easement or making a lease).“).
Dictionaries published around the time of CERCLA‘s enactment in 1980 affirm this natural meaning. See Ownership, American Heritage Dictionary (2d. ed. 1982) (“The state or fact of being an owner.... Legal right to the possession of a thing.“); Owner, Oxford American Dictionary (1st ed. 1980) (“[A] person who owns something as his property.“); Own, Black‘s Law Dictionary (5th ed. 1979) (“To have good legal title; to hold as property; to have a legal or rightful title to; to have; to possess.“); Owner, Black‘s Law Dictionary (5th ed. 1979) (“The person in whom is vested the ownership, dominion, or title of property; proprietor. He who has dominion of a thing, ... which he has a right to enjoy and do with as he pleases, even to spoil or destroy it, as far as the law permits, unless he be prevented by some agreement or covenant which restraints his right.... The primary meaning of the word as applied to land is one who owns the fee and who has the right to dispose of the property, but the term also includes one having a possessory right to land or the person occupying or cultivating it.“). For purposes of CERCLA, then, an owner includes the legal title holder of contaminated land.9 This broad liability is limited by only a handful of enumerated exceptions, which, again, the United States does not assert here.10
If the statutory term were not clear enough, the Supreme Court has admonished that “the law of CERCLA liability” incorporates “traditional standards and expectations,” that a “CERCLA-specific rule of ... liability ... does not arise
The distinction between federally owned and federally controlled properties indicates that ownership and control are independent inquiries—the United States may own a facility without controlling that facility. Cf.
Differentiating among owners, operators, and significant contributors demonstrates that a person may be considered an owner for purposes of CERCLA liability, see Bestfoods, 524 U.S. at 56 n.1, without having contributed in any way to the hazardous substances. See Atl. Research Corp., 551 U.S. at 136 (“[CERCLA] defines PRPs so broadly as to sweep in virtually all persons likely to incur cleanup costs.... [E]ven parties not responsible for contamination may fall within the broad definitions of PRPs in [§ 9607(a)].“). Likewise, CERCLA contains provisions for expedited final settlement with PRPs in certain circumstances. See
It is undisputed that the United States held legal title to relevant portions of the Questa mining lands at the time of significant hazardous substance disposal. See, e.g., App., Vol. 2, at 422 (“Prior to approving the 1974 Land Exchange, United States employees knew that [Chevron] had disposed of waste rock on the Selected Lands covered by [Chevron‘s] unpatented mining claims....“). Nevertheless, the government argues “bare legal title” is insufficient to trigger owner liability. Instead, it contends the unique nature of unpatented mining claims on federal lands requires an exception to CERCLA‘s ownership liability provision. But see
Although CERCLA contains neither an expressed nor an implied exception to owner liability for holders of “bare legal title,” the government urges us to adopt such an exception based on United States v. Friedland, 152 F. Supp. 2d 1234 (D. Colo. 2001). In Friedland, the district court held the United States, as “bare legal title holder to unpatented mining claims,” did not qualify as an “owner” for purposes of CERCLA liability. See id. at 1242-46. In reaching this conclusion, however, Friedland found that, because CERCLA defines owner “tautologically ... as ‘any person owning a facility,‘” “CERCLA‘s text [] offers virtually no guidance in interpreting the extent of owner liability.” Id. at 1242 (quoting
The government urges us to adopt Friedland‘s indicia of ownership test. But we find it neither persuasive in principle nor in application. First, as we explained above, this analysis has no basis in the statute. In fact, CERCLA‘s statutory context, which supports broad application of owner liability subject only to certain, specifically enumerated exceptions belies a supra-statutory gloss. Moreover, Congress included the phrase “indicia of ownership” when crafting some of its few exceptions to broad owner liability. See, e.g.,
Second, at least some of Friedland‘s reasoning conflicts with, and is thus undermined by, binding Supreme Court precedent. While Friedland contends “the United States is not allowed to exclude individuals from [land subject to unpatented mining claims] and may only regulate mining activities in the national forests in order to protect surface resources,” see 152 F. Supp. 2d at 1246, the Supreme Court has repeatedly emphasized Congress‘s broad, plenary Property Clause11 powers over national forest land, including lands subject to unpatented mining claims. See, e.g., Cal. Coastal Comm‘n v. Granite Rock Co., 480 U.S. 572, 581 (10th Cir. 1987) (“[T]he Property Clause gives Congress plenary power to legislate the use of the federal land on which [a mining company] holds its unpatented mining claim.“).12 Even if it is true, as the government argues, that Chevron and its corporate predecessors “had exclusive use and possession of the [Questa mining lands] for mining purposes, without any interference or control by the United States,” Aple. Br. at 21, the government‘s choice not to exercise its Property Clause powers does not invalidate their existence. There is no dispute that the United States held fee title to relevant portions of the Questa mining lands during the time of hazardous substance disposal, part of the area that today comprises the Questa Site. We do not doubt that it could have exercised greater powers, regulatory or otherwise, over the lands if it wanted to do so.13
Finally, we find the government‘s argument undermines the understanding
We conclude that, at a minimum, the term “owner” covers fee title holders for purposes of CERCLA liability, irrespective of any additional indicia of ownership. To find otherwise would be inconsistent with CERCLA‘s statutory scheme and an ordinary application of its terms. Of course, a “bare legal title” holder may in fact be liable for only a small, or perhaps no, share of remediation costs as a matter of equity. But a liberal construction of CERCLA‘s liability scheme requires any consideration of the extent and kind of an owner‘s involvement in hazardous substance production and disposal be made at the second stage of the CERCLA liability inquiry (i.e., allocation under
127 S.Ct. 2331 (explaining that “even parties not responsible for contamination may fall within the broad definition of PRPs,” e.g., owners).
In any event, the government engaged in much more than mere passive ownership here. The United States actively exercised its ownership when, for example, it sold portions of its land, including the 2,258 acres of land for waste rock disposal around the perimeter of the open-pit mine and the 627 acres of land for use as a tailings pond, to Molycorp in exchange for valuable consideration. Alienability is a key tenant of ownership—it is a “fundamental maxim of property law that the owner of a property interest may dispose of all or part of that interest as he sees fit.” Phillips v. Wash. Legal Found., 524 U.S. 156, 167 (1998).
In addition, the government actively encouraged mining activities on its lands when it passed the DPA and provided the initial loan to Molycorp, Chevron‘s corporate predecessor, to fund their molybdenum exploration and mining. For decades after that, the United States knew that Chevron was depositing millions of tons of waste rock and tailings on the surface estates, land over which the United States still held, at minimum, ownership via legal title. Regardless of whether contracting out mining activities might, or might not, shield a party from operator liability, it cannot shield a landowner—here, the legal titleholder—from owner liability (although it might reduce the party‘s equitable share at the allocation stage). And the government repeatedly exercised its plenary regulatory authority over the lands when it approved several special use permits for Molycorp‘s tailings pipelines. These actions all indicate the government‘s continued oversight and involvement in operations on the Questa mining lands that produced substantial amounts of hazardous substances. Though such efforts are not at all required for ownership liability, see, e.g., Atl. Research, 551 U.S. at 136, that the United States undertook them here buttresses our conclusion that it was an owner.
Accordingly, we conclude the United States was an owner of portions of the Questa Site during the relevant period when hazardous substances came to be located there. As a matter of law, therefore, the United States is a PRP with respect to the Questa Site and is strictly liable to contribute its equitably allocated share of Chevron‘s response costs, pursuant to
C. “Arranger” Liability
In addition to liability as an “owner” of contaminated property, Chevron asks us to find the United States liable as an “arranger” of hazardous substance disposal at the Questa Site. Though we have already determined the United States qualifies as an owner and is therefore a PRP, we must address this separate theory of recovery under
any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances.
To begin with, the United States is a “person” as defined in CERCLA, thus satisfying the first condition. See
As to the third condition, it is true that the United States helped arrange for the transport or disposal of waste rock and tailings at the Questa Site. And it is undisputed those materials contained or were themselves hazardous substances within the meaning of CERCLA. See
In such cases, “whether an entity is an arranger requires a fact-intensive inquiry that looks beyond the parties’ characterization of the transaction ... and seeks to discern whether the arrangement was one Congress intended to fall within the scope of CERCLA‘s strict-liability provisions.” Id. The Supreme Court has interpreted this inquiry to require more than “knowledge alone“; an arranger must have taken “intentional steps to dispose of a hazardous substance.” See id. at 611-12; see also Martin K. Eby Constr. Co. v. OneBeacon Ins., 777 F.3d 1132, 1140 (10th Cir. 2015) (citing this rule in a state-law insurance case).
Chevron contends that sufficiently intentional steps have been taken to satisfy this
According to Chevron, the undisputed facts demonstrate the federal government intentionally arranged for the disposal of hazardous substances on and from the Questa mining lands. First, the United States sold the selected lands to Molycorp with the knowledge that the lands were intended to be used as a disposal area. Molycorp initially proposed to use a canyon across the Red River as its primary waste-disposal site. Although a Forest Service report indicated that the Red River proposal was going to be the “least expensive means of dispos[al], ... the impact on the environment and ecology of Red River Canyon would be tremendous” and the proposal was thus “vigorously opposed by the Forest Service and ecologist groups.” App., Vol. 1, at 167. As an alternative, then, Molycorp began negotiations with the Forest Service in 1969 to facilitate a transaction in which Molycorp would give the United States “246.65 acres of land which it own[ed] in Taos County” in exchange for “2,258 acres of National Forest land” adjacent to the open-pit mine. Id. at 163. The Forest Service shared Molycorp‘s intent to use the selected lands as a disposal area and believed this use would benefit the United States. See id. at 164 (“The selected lands will be the final area of disposal for a part of the nonmineral overburden.“); id. at 166 (acknowledging that “the mine is supplying a needed mineral resource to the Nation” and noting “several indirect benefits from the disposal of the overburden material“).
Second, the United States sold an additional 627 acres of land to Molycorp with the intent that the lands be used as a tailings pond to dispose of mine tailings. A BLM land report analyzing the proposed sale identified the lands as “non-mineral in character” and “greatly needed as a tailings pond,” explaining the government‘s understanding that Molycorp‘s “molybdenum mine is located nine miles to the east and tailings would be piped from the mine to the pond.” Id. at 183-84. The BLM ultimately found that the sale would be “in the public interest” and, “[c]onsidering the urgent need of the applicant for the subject tract and its suitability for the proposed use as well as the resulting economic benefit to the general area from the expanded mining operation, the highest and best use is that of a tailings pond.” Id. 183, 186.
Finally, the United States routinely approved special use land authorization permits for pipelines crossing over national forest lands with the specific intent that Molycorp would use the pipelines to transport tailings from the mine site to the disposal ponds. For example, a 1965 government Impact Report referred to the pipeline as a “proposed tailings line” and acknowledged specific risks associated with this particular use, including “the potential of the line breaking and spilling slurry into the river, which might result in local fish kill prior to repair of the line.” Id. at 204-05. The report nonetheless concluded “[t]he over-all impact of this project is beneficial,” id. at 205, and indicated an express preference for Molycorp‘s pipe
These government actions may well constitute sufficiently “intentional steps” to satisfy the third condition of arranger liability. The collective effect of the United States‘s actions—including the sale of the selected lands for a waste disposal site, sale of the land for the second tailings pond, and approval of the tailings pipelines—was not only to ensure the likelihood of hazardous substance disposal but also to facilitate it.
But that is not the end of our analysis. Arranger liability under CERCLA applies only to a person who arranges for disposal “of hazardous substances owned or possessed by such person.”
Our position is consistent with several cases from other circuits. For example, the First Circuit recognized that the statutory phrase in
Likewise, the Third Circuit agrees that for arranger liability to attach under CERCLA, “[p]roof of ownership, or at least possession, of the hazardous substance is required by the plain language of the statute.” Morton Int‘l, Inc. v. A.E. Staley Mfg. Co., 343 F.3d 669, 678 (3d Cir. 2003); see also, e.g., GenCorp, Inc. v. Olin Corp., 390 F.3d 433, 445 (6th Cir. 2004) (“‘CERCLA imposes liability on any person who ‘arrange[s]’ ‘by contract, agree
Chevron points to only one case which has rejected the ownership requirement. See Cadillac Fairview/Cal., Inc. v. United States, 41 F.3d 562 (9th Cir. 1994). In that case, the Ninth Circuit interpreted CERCLA‘s statutory language to extend arranger liability “to persons ‘otherwise arrang[ing]’ for disposal or treatment of hazardous substances whether owned by the arranger or ‘by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity.‘” Id. at 565 (emphasis added). In other words, Cadillac Fairview interpreted arranger liability to attach not only to hazardous substances owned or possessed by the alleged-arranger but also to such substances owned or possessed “by any other party or entity.” Id. Even if this argument were not foreclosed by our decision in Raytheon, we find it unpersuasive based on the statute‘s plain language.
First of all, the more natural reading of the statutory language is that the hazardous substances must be owned or possessed by the person arranging for the disposal or treatment of those substances. In contrast, the clause “by any other party or entity” does not apply to ownership of the hazardous substances but, as most courts have held, refers back to the previous clause, “for disposal or treatment” (i.e., the phrase thus most naturally reads as the arrangement “for disposal or treatment ... by any other party or entity, at any facility or incineration vessel“). This reading makes sure that the party getting paid for disposal or treatment (and thereby taking possession or ownership of the hazardous substances) is liable while not insulating from liability the previous owner who arranged for the disposal or treatment. To read the provision otherwise would render the “owned or possessed” language entirely superfluous. Under well-established principles of statutory interpretation, Congress would not have included an ownership or possession requirement if that requirement could be met by any party‘s or entity‘s ownership or pos
Chevron also cites two cases, in addition to Cadillac Fairview, to support its claim that other courts have rejected an ownership or possession requirement. But as Chevron acknowledges, those cases merely “question[] whether it requires proof of actual ownership, or may be satisfied by other evidence,” without rejecting the requirement altogether, see Aplt. Reply Br. at 25 n.15. For example, the Sixth Circuit acknowledged that “to say that [
Raytheon does not discuss whether anything less than actual ownership of the hazardous substances disposed of may satisfy CERCLA‘s requirements for arranger liability, nor has Chevron made a constructive possession argument. Chevron briefly notes that “the United States held fee title to lands from which waste rock was extracted and therefore owned that rock,” but its briefs neither develop this argument nor apply it to CERCLA. See Aplt. Br. at 56 n.15.
Even if we were to reach this argument, Chevron failed to establish that the United States owned or possessed the hazardous substances, or the mining waste containing them. It cites to United States v. McPhilomy, 270 F.3d 1302 (10th Cir. 2001), but that criminal case did not involve valid mining claims and turned on a very different burden of proof even as to the issues it discussed. In any event, “the moment th[at] ore becomes detached from the soil in which it is embedded it becomes personal property, the ownership of which is in the [person] whose labor, capital, and skill has discovered and developed the mine[,] ... free from any lien, claim, or title of the United States....” Forbes v. Gracey, 94 U.S. 762, 765-66 (1876). The United States neither owned nor possessed the waste rock and tailings extracted from Chevron‘s molybdenum mining activities.
In sum, we conclude that the United States is not an “arranger” under CERCLA with regard to the contamination located at the Questa Site because it did not
III. Conclusion
We conclude that, as a matter of law, the United States is an “owner” under
Accordingly, we REVERSE in part and AFFIRM in part the district court‘s judgment and REMAND for further proceedings consistent with this opinion.
TYMKOVICH, Chief Judge.