Document kD5qq1d7vOj4p9dMLbzNgX2rJ

Case 2:04-cv-00256-LRS Document 357 Filed 06/19/2009 1 2 3 4 5 6 EAUSNTIETREND DSTISATTREISCTDIOSFTRWICATSHCIONUGRTTON 7 8 9 10 11 12 13 tLRJiCeCCThnOn.HeoOoedrMsSlnioENvCevEflriIeilFoClvPCdedlEneadHuOHeftDarRiemLEaolAdEeVtnLeaee.Rsm;nrI,dePaLAdarabAtTvnLneTeeaKrddErnEiitbniOrtoTDoRhoedfOnresliEiltvT;behToSiRdaeedAfEnsIutmRSBdhao,eVelEDfmaaStCAOnhnboeTOdNelIvrFAOiolLNlfeD, No. CV-04-256-LRS IPOMNLROTADETIERINORTANIGLFITRFAOA'SND1TI2SI(NMb)G(I6S)S, 14 Plaintiffs, 15 And 16 STATE OF WASHINGTON, 17 18 Intervenor, Plaintiff- 19 20 Ta ECCanKadCiOanMcIoNrpCoOratMioEnT, ALS, LTD., 21 Defendant. 22 BEFORE THE COURT are the Plaintiffs Fed. R. Civ. P. 12(b)(6) 23 Motion To Dismiss Defendant's Counterclaims (Ct. Rec. 262), and Plaintiffs 24 Request For Judicial Notice In Support Of Its 12(b)(6) Motion (Ct. Rec. 265). 25 Oral argument was heard on June 4, 2009. Paul J. Dayton, Esq., argued 26 27 O12R(bD)E(6R) MGORATINOTNINTGOPDLIASMINITSSIF, FIN'STER ALIA- 1 28 v. E 18cv3472 NDCA Tiers 8&9 ED 002061 00163S Case 2:04-cv-00256-LRS Document 357 Filed 06/19/2009 1 on behalf of Plaintiff Confederated Tribes Of The Colville Reservation 2 ("Tribes"). Mark E. Elliott argued on behalf of Defendant Teck Cominco 3 Metals, Ltd. ("Teck"). 4 5 6 7 8 9 I. BACKGROUND In its Answer to the Second Amended Complaint of the Tribes (Ct. Rec 194), Defendant Teck asserts two CERCLA1counterclaims against the Tribes, contending the Tribes caused and contributed to the hazardous substances contamination of Lake Roosevelt. As part of its counterclaims against the Tribes for cost recovery, contribution and declaratory relief, Teck alleges the 10 Tribes "are covered `persons'within the meaning of that term as it is used in 11 CERCLA, 42 U.S.C. Section 9601(21)." The Tribes move to dismiss the 12 counterclaims, asserting they are not "person[s]" subject to liability under 13 CERCLA, 42 U.S.C. Section 9607(a), and therefore, that Teck's counterclaims 14 are not based on "a cognizable legal theory." 15 16 II. DISCUSSION 17 18 19 20 21 A. 12(b)(6) Standard/Judicial Notice A Rule 12(b)(6) dismissal is proper only where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In reviewing a 12(b)(6) motion, the court must accept as true all material allegations in the complaint, as well as reasonable inferences to be 22 drawn from such allegations. Mendocino Environmental Center v. Mendocino 23 24 25 Act1, C42omUp.Sre.Che. nSseivcteioEnn9v6ir0o1nmet.ensetaql. Response, Compensation, and Liability 26 27 O12R(bD)E(6R) MGORATINOTNINTGOPDLIASMINITSSIF, FIN'STER ALIA- 2 28 v. E 18cv3472 NDCA Tiers 8&9 ED 002061 00163S Case 2:04-cv-00256-LRS Document 357 Filed 06/19/2009 1 County, 14 F.3d 457, 460 (9th Cir. 1994); NL Indus., Inc. v. Kaplan, 792 F.2d 2 896, 898 (9th Cir. 1986). The sole issue raised by a 12(b)(6) motion is whether 3 the facts pleaded, if established, would support a claim for relief; therefore, no 4 5 6 7 8 matter how improbable those facts alleged are, they must be accepted as true for purposes of the motion. Neitzke v. Williams, 490 U.S. 319, 326-27, 109 S.Ct. 1827 (1989). Unless the court converts the Rule 12(b)(6) motion into a summary judgment motion, or the defense is apparent from matters of which the court may take judicial notice, the court cannot consider material outside the 9 complaint (e.g. facts presented in briefs, affidavits or discovery materials). 10 Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9thCir. 2001). 11 A matter that is properly the subject ofjudicial notice (Fed. R. Evid. 201) may 12 be considered along with the complaint when deciding a 12(b)(6) motion to 13 dismiss without converting the motion to one for summary judgment. MGIC 14 Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9thCir. 1986). The court may 15 properly consider matters of public record (e.g. pleadings, orders and other 16 papers on file in another action pending in the court; records and reports of 17 18 19 administrative bodies; or the legislative history of laws, rules or ordinances) as long as the facts noticed are not subject to reasonable dispute. Intri-Plex Technologies, Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9thCir. 2007). 20 21 B. Statutory Language 42 U.S.C. Section 9607 imposes liability upon certain "persons" (i.e, 22 owner/operator, arranger, transporter) for costs incurred in responding to a 23 release of hazardous substances. "Person" is defined in Section 9601(21) as "an 24 individual, firm, corporation, association, partnership, consortium, joint venture, 25 commercial entity, United States Government, State, municipality, commission, 26 27 O12R(bD)E(6R) MGORATINOTNINTGOPDLIASMINITSSIF, FIN'STER ALIA- 3 28 v. E 18cv3472 NDCA Tiers 8&9 ED 002061 00163S Case 2:04-cv-00256-LRS Document 357 Filed 06/19/2009 1 political subdivision of a State, or any interstate body" "Indian tribe" is not 2 expressly included in this list and indeed, is defined separately at Section 3 9601(36). 4 5 6 7 8 "[W]hen the statute's language is plain, the sole function of the courts- at least where the disposition required by the text is not absurd- is to enforce it according to its terms." Hartford Underwriters Insurance Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6, 120 S.Ct. 1942 (2000). In Hartford, the U.S. Supreme Court reiterated what it had previously said in Connecticut National Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146 (1992): 9 10 11 12 wtoao[[hICgnm]hiaensiaiti,tatnfitcntieiiratttodshermtn]dar.pctieonarWacmeannotlohisuintcnertaagtneisnndsatdom]ha.nsmelutsabswoetteauotfpnthorersdereesaislnuaaocsmlaoftl:ueasort"ttatsjhhuttseauadhrtttiusoeca.tuiewallWedlahgriaaeeintslqwhuliatuanativsauyraemyrsyestsibustsiatraghctnyeueosdorfmeiuirt.npissmlt[aeCttetohseittea.aa"nntt,iduotnes 13 CERCLA's definition of "person" is plain. It does not include "Indian 14 tribes." Finding that CERCLA liability cannot be imposed on Indian tribes per 15 the terms of the statute is not an "absurd" result. Whereas CERCLA 16 specifically provides for liability to an Indian tribe, 42 U.S.C. Section 17 18 19 9607(a)(4)(A) and 9607(f), it contains no specific provision for the liability of an Indian tribe.2 Furthermore, sovereigns will not be read into the term "person" unless there is affirmative evidence that Congress intended to include 20 21 22 23 24 25 aCTcsuolhEtpneuRpsrstioC,rurutULstocs,Anttttidhhholeeeeniareebcbtxxhoieltpenyietrconycelnt.asusdnistoim"oinspnelnonatefthiincasoettnmasIistnneuaagdtronyiaoriynntfogoct,rrno"iebenleyestxtshproiuarnncregetasisnoinimynooptaeuld"xinpdepiesiurtresiesosxoesncsniaotlslu"euscxisnacounilnubuosjsnoeisefocstaotantfoelotsxettchralietuuurss.tioory 26 27 O12R(bD)E(6R) MGORATINOTNINTGOPDLIASMINITSSIF, FIN'STER ALIA- 4 28 v. E 18cv3472 NDCA Tiers 8&9 ED 002061 00163S Case 2:04-cv-00256-LRS Document 357 Filed 06/19/2009 1 sovereigns. Wilson v. Omaha Indian Tribe, 442 U.S. 653, 667, 99 S.Ct. 2529 2 (1979); Fayed v. CIA, 229 F.3d 272, 274 (D.C. Cir. 2000). Congress can waive 3 a tribe's immunity from suit, but that waiver must be clearly expressed. 4 5 6 7 8 Congress has plenary power over tribal sovereignty, but must make clear its intent to limit that sovereignty. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56, 98 S.Ct. 1670 (1978); Fletcher v. United States, 116 F.3d 1315, 1328 (10th Cir. 1997).3 Defendant Teck, as it must, acknowledges CERCLA is silent on the issue of whether tribes are covered as "persons." Defendant acknowledges there is no 9 legislative history regarding whether Congress intended Indian tribes to be 10 subject to liability under CERCLA. Nevertheless, Defendant asserts this is of 11 no consequence since it is clear what CERCLA is intended to address, that 12 being holding parties responsible for cleaning up hazardous substances 13 contamination caused by them. Defendant, a foreign (Canadian) corporation, 14 which the Ninth Circuit in Pakootas v. Teck Cominco Metals, Ltd., 452 F.3d 15 1066, 1079 (9thCir. 2006) found was subject to CERCLA liability despite the 16 fact that its disposal activity occurred in Canada, says there is no reason why an 17 18 19 20 3 21 22 23 24 25 mt2q(Ur20uian0b0eti0est1tes7te)ird,)oasA,inrSsnaebtnoonas"detftopentwteUshtprhavsncete.olirettcAsnheaoustderlua"raSCsrsnItitosvnuatinedbtmce.gijeasaRrcnTeyvets.htshstroeFoiaioasbrveCnreieecasEcdhlsaaRloisarCnmCeentosLedesrndhu,Aptiob1.d,jwal5ei5nn2ac5idobtnF1titaal.oisSnUdtpyvul.aeiS.epancr.pbiaDtf.ei1li2lyenc2idstfat8yeill,sy1lnuy21od"n23afdid7m4nese,autpSr'l1csl.CCi2hwer4Eetdii.7tlnR"hi2ta(Cet3nDthnh3Lca.te1eA,tC,iI.oto2nnl3do3i.a6n 26 27 O12R(bD)E(6R) MGORATINOTNINTGOPDLIASMINITSSIF, FIN'STER ALIA- 5 28 v. E 18cv3472 NDCA Tiers 8&9 ED 002061 00163S Case 2:04-cv-00256-LRS Document 357 Filed 06/19/2009 1 Indian tribe should be treated any differently.4 This, however, ignores the fact 2 that "corporations" are specifically among the enumerated entities included 3 within the definition of "person" in 42 U.S.C. Section 9601(21), whereas Indian 4 5 6 7 8 tribes are not, and do not fall neatly into the definition of any of the other enumerated entities. Furthermore, a foreign corporation is not generally entitled to sovereign immunity, unlike an Indian tribe which has been recognized by the United States Government. An Indian tribe simply is not just any other party for the purpose of ascertaining whether liability is authorized by CERCLA. Defendant Teck argues that CERCLA's use of the term "municipality" 9 should be read inpari materia with other federal environmental statutes, 10 11 including the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. 6901 et seq., the Safe Drinking Water Act (SDWA), 42 U.S.C. 12 300f et. seq., and the Clean Water Act (CWA), 33 U.S.C. 1251 et seq. Each 13 of those other environmental statute defines "person" to include 14 "municipalities," and in turn, defines "municipalities" to specifically include 15 "Indian tribes." 42 U.S.C. 6903(13)(A); 42 U.S.C. 300(f)(10); and 33 16 U.S.C. 1362(4). In other words, the argument is that even though CERCLA 17 18 19 20 does not define the term "municipality," the fact CERCLA defines "person" to include municipalities should lead the court to conclude that CERCLA's definition of "person" includes Indian tribes. The in pari materia canon of statutory construction is only employed 21 22 23 24 4 hUanziaterddAoSulttshatoseuusbg(shstpatnehcceief"sidcaiasslplayorsieansluLalactktoievfiRtthyoa"otso"ecdvcieuslprtr)oe.sdaAlincaccCotiarvdniiatnydg"al,yo",crcienulerPraeasdkeosi"nototahfse, the 25 Nbeiinntgh aCpiprcliueidt f"oeuxntrdatTeerrciktowriaasllysu."bject to CERCLA and that CERCLA was not 26 27 O12R(bD)E(6R) MGORATINOTNINTGOPDLIASMINITSSIF, FIN'STER ALIA- 6 28 v. E 18cv3472 NDCA Tiers 8&9 ED 002061 00163S Case 2:04-cv-00256-LRS Document 357 Filed 06/19/2009 1 where a statute is ambiguous. For reasons set forth above, CERCLA is not 2 ambiguous with respect to whether Indian tribes are covered "persons" subject 3 to CERCLA liability. Moreover, application of inpari materia is problematic 4 5 6 7 8 because: 1) waiver of tribal sovereign immunity requires an expression of clear intent on the part of Congress; and 2) even without regard to sovereign immunity, CERCLA is distinct from other environmental statutes- RCRA, the SDWA, and the CWA- and does not address precisely the same subject matter. In Pakootas, the Ninth Circuit pointed out the distinction between CERCLA and RCRA: 9 10 11 12 13 14 15 bticoCc(hnellefEeeetieoRtaaRhndnnCteCihuuarsRenppLpfAoAoeacornscofeoaitvshsiurltigasarooan;ozlntcanrhooltermyeirrdgvrteodcuihrntouoleriatnsmeeg.tscaiuwenetClssegraautnEnsticocdeetRhe)rddiyCsldapwriLseiasositlbAttapsehhlataoeoudlssitsofmeaeaeoelscoprs.tsthofciinvtashleoeitiasnttamzignweoauasbrlhddipliaeieosgbrcuetiaiohnsltsiteethttsymsheupertbafoelorsditrtahcioabeeanmslascesaeeifsnor 452 F.3d at 1079 (emphasis added). RCRA regulates "disposal activities," whereas CERCLA concerns itself with liability for cleaning up hazardous substances which have already been "disposed" and which have now been 16 released or are threatened to be released into the environment. See also 17 Meghrig v. KFC Western, Inc., 516 U.S. 479, 116 S.Ct. 1251, 1255 (1996) 18 (RCRA allows landowner to seek relief for present "imminent and substantial" 19 threats to health and/or environment; RCRA has an "immediate action" stance, 20 where CERCLA has a more traditional tort liability stance). 21 Furthermore, CERCLA treats an Indian tribe differently from a 22 municipality. For example, an Indian tribe is entitled to costs of a removal or 23 24 25 remedial action "not inconsistent with the national contingency plan," 42 U.S.C. Section 9607(a)(4)(A), whereas "any other person" (i.e., a municipality) must prove that costs incurred are "consistent with the national contingency plan," 42 26 27 O12R(bD)E(6R) MGORATINOTNINTGOPDLIASMINITSSIF, FIN'STER ALIA- 7 28 v. E 18cv3472 NDCA Tiers 8&9 ED 002061 00163S Case 2:04-cv-00256-LRS Document 357 Filed 06/19/2009 1 U.S.C. Section 9607(a)(4)(B). The latter contains a more rigorous evidentiary 2 burden. The costs associated with response action undertaken by an Indian tribe 3 can be avoided by the defendants only if the defendants can show they are not 4 5 6 7 8 consistent with the national contingency plan (NCP), whereas response action costs incurred by "any other person" require that "other person" to show his action is consistent with the NCP before he will be allowed to recover his costs. Town ofBedford v. Raytheon, Co., 755 F.Supp. 469, 472 (D. Mass. 1991). Finally, Defendant Teck contends an Indian tribe qualifies as either an "association" or as a "consortium" under the definition of "person" in 42 U.S.C. 9 Section 9601(21). As with the term "municipality," the terms "association" and 10 11 "consortium" are not specifically defined in CERCLA. CERCLA has existed for nearly 30 years, and RCRA, with it definition of "municipalities" including 12 "Indian tribes," has existed in excess of 30 years. In that time, Congress has had 13 more than an adequate opportunity to address any oversight regarding liability 14 of Indian tribes under CERCLA. If Congress intended to make Indian tribes 15 liable under CERCLA, one has to ask why it did not specifically include "Indian 16 tribes" among the entities covered by the term "person" in Section 9601(21), 17 18 19 20 21 nor specifically define "municipality," "association," or "consortium" to include "Indian tribes." It seems extremely implausible that Congress would simply leave it to chance that some court would conclude an Indian tribe qualifies as one of those entities subject to CERCLA liability. There may be some very compelling policy reasons why Indian tribes should not be exempt from CERCLA liability, but that is something Congress 22 needs to address, not this court. Defendant asserts that "[u]nder the Tribes' 23 interpretation of CERCLA, an Indian tribe could never, under any 24 circumstances, be found to be a responsible party under CERCLA," and "[a]s a 25 result, an Indian tribe could literally operate a dump for the disposal of 26 27 O12R(bD)E(6R) MGORATINOTNINTGOPDLIASMINITSSIF, FIN'STER ALIA- 8 28 v. E 18cv3472 NDCA Tiers 8&9 ED 002061 00163S Case 2:04-cv-00256-LRS Document 357 Filed 06/19/2009 1 hazardous substances, with complete impunity under CERCLA." However, 2 such a conclusion is of dubious validity inasmuch as a tribe's disposal activities 3 would clearly be subject to regulation under RCRA as well as SDWA and the 4 5 6 7 8 CWA. There is authority that when an Indian tribe files suit, it waives it immunity as to counterclaims of a defendant that sound in recoupment. Berrey v. ASARCO Incoporated, 439 F.3d 636, 643-45 (10thCir. 2006); Rosebud Sioux Tribe v. Val-JJConstr. Co., 50 F.3d 560, 562 (8thCir. 1995); and Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324, 1344 (10thCir. 1982). Claims in 9 recoupment arise out of the same transaction or occurrence, seek the same kind 10 11 of relief as the plaintiff, and do not seek an amount in excess of that sought by the plaintiff. Berrey, 439 F.3d at 643. Sovereign immunity is waived because 12 "recoupment is in the nature of a defense arising out of some feature of the 13 transaction upon which the [sovereign's] action is grounded." Id., quoting Bull 14 v. United States, 295 U.S. 247, 262, 55 S.Ct. 695 (1935). Waiver under the 15 doctrine of recoupment does not depend on prior waiver by the sovereign or an 16 independent congressional abrogation of immunity. Id. at 644. In Berrey, the 17 18 19 20 21 Tenth Circuit held the defendants' counterclaims for common law contribution and indemnity against the Quapaw Tribe were not waived because those counterclaims sounded in recoupment. The Tribe also argued for dismissal of defendants' CERCLA counterclaims for contribution, contending the counterclaims were not permitted because CERCLA's definition of "person" does not include Indian tribes. The Tenth Circuit held it did not have 22 jurisdiction over the issue and declined to address the argument. Id. at 646. 23 In Berrey, the Quapaw Tribe sought dismissal of CERCLA counterclaims 24 based on statutory interpretation, not tribal sovereign immunity. So too here, 25 the Confederated Tribes Of The Colville Reservation seek dismissal of 26 27 O12R(bD)E(6R) MGORATINOTNINTGOPDLIASMINITSSIF, FIN'STER ALIA- 9 28 v. E 18cv3472 NDCA Tiers 8&9 ED 002061 00163S Case 2:04-cv-00256-LRS Document 357 Filed 06/19/2009 1 Defendant's CERCLA counterclaims based on statutory interpretation, not 2 sovereign immunity. As is apparent, however, the court's interpretation of 3 CERCLA is necessarily colored by sovereign immunity principles. 4 5 6 7 8 9 C. EPA Interpretation and Indian Canons of Construction Because the plain language of CERCLA reveals that Indian tribes are not subject to liability under that statute, there is no reason for the court to consider how EPA has interpreted CERCLA as it pertains to tribal liability. CERCLA is not silent or ambiguous on this issue and accordingly, there is no reason for the court to consider and give deference to EPA's interpretation. Chevron U.S.A. 10 11 Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778 (1984). Congressional intent to exclude Indian tribes from liability 12 is clear from the language of the statute, a conclusion that is reinforced by the 13 fact there is no affirmative evidence that Congress intended to include 14 sovereigns in the definition of "person." 15 For the same reasons, the court need not consider application of Indian 16 law canons of construction in determining whether there is tribal liability under 17 CERCLA. 18 19 20 21 22 III. CONCLUSION The Colville Confederated Tribes' Fed. R. Civ. P. 12(b)(6) Motion To Dismiss Defendant's Counterclaims (Ct. Rec. 262) is GRANTED. Defendant's CERCLA counterclaims against the Tribes are DISMISSED with prejudice as they are not premised on a cognizable legal theory. The legal deficiency of 23 these counterclaims cannot be cured by an amended complaint or by any other 24 means. The Tribes' Request For Judicial Notice In Support Of Its 12(b)(6) 25 Motion (Ct. Rec. 265) is DISMISSED as moot since it is unnecessary to 26 27 O12R(bD)E(6R) MGORATINOTNINTGOPDLIASMINITSSIF, FIN'STER ALIA- 10 28 v. E 18cv3472 NDCA Tiers 8&9 ED 002061 00163S Case 2:04-cv-00256-LRS Document 357 Filed 06/19/2009 1 consider EPA's interpretation of CERCLA in arriving at a resolution of the 2 issue presented to the court. 3 IT IS SO ORDERED. The District Court Executive is directed to enter 4 5 this order and forward copies to counsel of record. DATED this 19th day of June, 2009. 6 s/Lonny R. Suko 7 8 ---------------------------------U---n-i-t-eLdOSNtaNteYs DRi.stSrUicKt JOu-d-g--e----- 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 O12R(bD)E(6R) MGORATINOTNINTGOPDLIASMINITSSIF, FIN'STER ALIA- 11 28 v. E 18cv3472 NDCA Tiers 8&9 ED 002061 00163S