Asarco LLC v. Union Pacific Railroad Company et al

Filing 50

MEMORANDUM DECISION AND ORDER finding as moot 44 Motion to Strike ; granting 31 Motion to Dismiss. NOW THEREFORE IT IS HEREBY ORDERED that Defendants' Motion to Dismiss (Dkt. 31) is GRANTED. This case is HEREBY DISMISSED IN ITS ENTIRETY. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
ASARCO, LLC,

Case No. 2:12-cv-00283-EJL

Plaintiff,
v.

MEMORANDUM DECISION AND
ORDER

UNION PACIFIC RAILROAD COMPANY,
and UNION PACIFIC CORPORATION,
Defendants.

Before the Court in the above entitled matter are the Defendants’ Motion to
Dismiss pursuant to Rule 12(b)(6) and a related Motion to Strike. The parties have filed their
responsive briefing and the matter is ripe for the Court’s review. Having fully reviewed the
record herein, the Court finds that the facts and legal arguments are adequately presented in
the briefs and record. Accordingly, in the interest of avoiding further delay, and because the
Court conclusively finds that the decisional process would not be significantly aided by oral
argument, the Motions shall be decided on the record before this Court without oral
argument.
FACTUAL AND PROCEDURAL BACKGROUND
On June 5, 2012, Plaintiff, ASARCO LLC, filed a Complaint in this matter
seeking contribution under § 113(f) of the Comprehensive Environmental Response,
Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601, et seq. from Defendants

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Union Pacific Railroad Company and Union Pacific Railroad Corporation (collectively
referred to as “Union Pacific”). (Dkt. 1.) Union Pacific filed a Motion to Dismiss the
Complaint for failure to state a claim. (Dkt. 15.) Thereafter, ASARCO filed its First
Amended Complaint (“FAC”) to which Union Pacific filed a new Motion to Dismiss and a
Motion to Strike. (Dkt. 24, 31, 44.) The parties have fully briefed the Motion to Dismiss and
the matter is now ripe for the Court’s consideration.
STANDARD OF LAW
A motion to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(6)
tests the sufficiency of a party’s claim for relief. When considering such a motion, the
Court’s inquiry is whether the allegations in a pleading are sufficient under applicable
pleading standards. Federal Rule of Civil Procedure 8(a) sets forth minimum pleading rules,
requiring only a “short and plain statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8(a)(2).
A motion to dismiss will only be granted if the complaint fails to allege
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged. The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). Although “we
must take all of the factual allegations in the complaint as true, we are not bound to accept
MEMORANDUM DECISION AND ORDER - 2

as true a legal conclusion couched as a factual allegation.” Id. at 1949-50; see also Manzarek
v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Therefore,
“conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion
to dismiss for failure to state a claim.” Caviness v. Horizon Comm. Learning Cent., Inc., 590
F.3d 806, 811-12 (9th Cir. 2010) (citation omitted).
DISCUSSION
Union Pacific’s Motion to Dismiss argues the claims in the Amended
Complaint should be dismissed because they are barred by: 1) prior settlement agreements,
2) res judicata, 3) judicial estoppel, 4) the statute of limitations, and 5) the fact that
ASARCO has no contribution rights against Union Pacific. (Dkt. 32.) ASARCO disputes
each of these arguments and maintains its FAC has properly stated a claim for relief
sufficient to overcome the Motion to Dismiss. (Dkt. 40.) The Court finds as follows.
1.

Statute of Limitations
Union Pacific raises two arguments concerning the timeliness of the claims

made in this case: 1) violation of CERCLA’s statute of limitations and 2) the new claims in
the FAC do not relate back to those made in the initial Complaint. (Dkt. 32.) ASARCO
maintains its claims are timely. (Dkt. 41.) Because these arguments are threshold
considerations, the Court addresses them first.

MEMORANDUM DECISION AND ORDER - 3

A.

CERCLA § 113(g)(3)(B)

The initial Complaint filed in this case, Union Pacific asserts, was outside of
the three-year limitations period prescribed in CERCLA § 113(g)(3)(B), which states: “No
action for contribution for any response costs or damages may be commenced more than 3
years after—(B) the date of ... entry of a judicially approved settlement with respect to such
costs or damages.” 42 U.S.C. § 9613(g)(3)(B). In calculating the three year time period,
Union Pacific argues the day the 2009 CDA Settlement was entered, June 5, 2009, is counted
as the first day. (Dkt. 31 at 26.) Therefore, the three years expired on June 4, 2012 and the
initial Complaint was untimely as it was not filed in this case until June 5, 2012. (Dkt. 1.)
This is not the first time this argument has been raised. See ASARCO, LLC v.
Hela Min. Co., Case No. CV-12-0381-LRS, 2012 WL 5929962, *3 (E.D. Wash. Nov. 27,
2012). The Court finds the appropriate calculation for determining the dates for the three year
limitations period is that used in Federal Rule of Civil Procedure 6(a). Id. Under that
calculation, the initial Complaint filed in this case was timely as it was filed three years to
the day after the CDA Settlement was entered.
B.

Related Back

Union Pacific argues the “new” claims in the FAC, filed on July 23, 2012,
should be deemed untimely because ASARCO’s new contribution claims adding the Jack
Waite Mine and the North Fork were not encompassed in the original Complaint. As such,
it contends, the new claims do not relate back to the date of the originally filed Complaint
and, therefore, are untimely under CERCLA’s statute of limitations. (Dkt. 32 at 24.)
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Paragraph 1 of the Complaint generally describes the geographic area:
As used in this Complaint, the “Coeur d’Alene Site” (or “Site”)
consists of a 1,500-square mile area located in northern Idaho
and eastern Washington. The Site includes the Bunker Hill
mining and smelting complex and a 21-square mile area around
that complex (known as the “Box”). The Site includes various
mines and adjacent streams along the South Fork of the Coeur
d’Alene River (“SFCDR”) and its tributaries (referred to as the
“Upper Basin”), and the Coeur d’Alene River corridor, adjacent
flood plains, downstream water bodies (including Coeur
d’Alene Lake), tributaries and fill areas (referred to as the
“Lower Basin”).
(Dkt. 1 at ¶ 1.) In contrast, Paragraph 1 of the FAC states:
As used in this Complaint, the “Coeur d’Alene Site” (or “Site”)
consists of a 1,500-square mile area located in northern Idaho
and eastern Washington. The Site includes the Bunker Hill
mining and smelting complex and a 21-square mile area around
that complex (known as the “Box”). The Site includes various
mines and mining-contaminated areas in the Coeur d’Alene
River Basin including, without limitation, along the North Fork
and the South Fork of the Coeur d’Alene River (respectively,
“North Fork” and “South Fork”) and their tributaries, and the
main stem Coeur d’Alene River corridor, adjacent floodplains,
downstream water bodies (including Coeur d’Alene Lake),
tributaries and fill areas.
(Dkt. 24 at ¶ 1.) Both the Complaint and FAC go on in other paragraphs to further
describe the geographic area site as well as the factual background of the clean up efforts and
litigation that have gone on in regards to the area. (Dkt. 1 at ¶¶ 21-39) (Dkt. 24 at ¶¶ 22-39.)
These paragraphs are examples of where ASARCO made changes in the FAC so as to more
specifically incorporate the North Fork of the Coeur d’Alene River areas in its contribution
claim.

MEMORANDUM DECISION AND ORDER - 5

Rule 15(c) states that “[a]n amendment to a pleading relates back to the date
of the original pleading when ... the amendment asserts a claim or defense that arose out of
the conduct, transaction, or occurrence set out—or attempted to be set out—in the original
pleading.” Fed. R. Civ. P. 15(c)(1)(B). “Claims arise out of the same conduct, transaction,
or occurrence if they ‘share a common core of operative facts” such that the plaintiff will rely
on the same evidence to prove each claim.’” Williams v. Boeing Co., 517 F.3d 1120, 1133
(9th Cir. 2008) (quoting Martell v. Trilogy Ltd., 872 F.2d 322, 325-26 (9th Cir. 1989)
(finding that amended complaint related back where amended complaint added new theory
of recovery based on facts alleged in original complaint)). “The requirement that the
allegations in the amended complaint arise from the same conduct, transaction, or occurrence
is meant to ensure that the original pleading provided adequate notice of the claims raised
in the amended pleading.” Id. at 1133 n. 9 (quoting Martell, 872 F.2d at 326).
Having reviewed both the Complaint and the FAC, the Court finds the claims
raised in the FAC relate back to those raised in the Complaint. The claims arise out of the
same conduct and share a common core of operative facts. As the Court will discuss more
below, the Coeur d’Alene Basin geographical area is large and encompasses both the North
and South Forks of the Coeur d’Alene River. That the FAC more specifically describes the
claims relating to the Jack Waite Mine and North Fork does not change the nature of the
allegations and/or the contribution claim ASARCO has raised in this case.

MEMORANDUM DECISION AND ORDER - 6

2.

Asarco’s Contribution Claim
This Court has a unique and comprehensive understanding of the historical

factual and procedural underpinnings of this case, as it has presided over the consolidated
cases brought by the Coeur d’Alene Tribe and the United States against ASARCO
concerning the recovery of damages and costs related to the natural resource damages caused
by the historical mining activities in the area. See Coeur d’Alene Tribe v. Asarco, Inc., Case
Nos. CV91-0342-N-EJL and United States, et al. v. Asarco, Inc., et al., CV96-0122-N-EJL.
In those cases, following a lengthy hearing, this Court issued an Order on September 3, 2003
finding ASARCO to be liable for twenty-two percent of the costs of CERCLA remediation
at the Coeur d’Alene Site. See Coeur d’Alene Tribe v. Asarco, Inc., 280 F.Supp.2d 1094 (D.
Idaho 2003).
Thereafter, on August 9, 2005, ASARCO filed a voluntary petition for relief
under Chapter 11 of the United States Bankruptcy Code in the Bankruptcy Court for the
Southern District of Texas. See In re Asarco LLC, et al., Case No. 05-21207, United States
Bankruptcy Court, Southern District of Texas, Corpus Christi Division. In that case,
ASARCO sought approval from the Bankruptcy Court of a global type settlement of all of
ASARCO’s environmental liabilities, including those related to the Coeur d’Alene Basin.
(Dkt. 15-2, Ex. A.) Under the terms of the settlement, ASARCO would pay approximately
$482 million to resolve its CERCLA liability at the Coeur d’Alene Basin site (“CDA
Settlement”). (Dkt. 24 at Ex. 1.) The settlement was approved by the Bankruptcy Court. (Dkt.
15-5, Ex. C.) A plan of reorganization of ASARCO was also approved which provided the
MEMORANDUM DECISION AND ORDER - 7

funding for the payout of that settlement. (Dkt. 25-1, Ex. 1.) In December 2009, ASARCO
made $482.143 million in payments under the settlement of its environmental liability for
damages caused in the Coeur d’Alene Basin.
ASARCO has now filed this case seeking to recover contribution costs from
Union Pacific for the environmental damages it alleges Union Pacific’s activities caused in
the Coeur d’Alene Basin. (Dkt. 24.) Union Pacific counters that ASARCO’s contribution
claim are barred by virtue of the settlement agreement entered into between these two parties
in ASARCO’s bankruptcy proceeding. (Dkt. 32 at 4.) In response, ASARCO asserts its
contribution claim raised here were not released in any prior settlement agreement. (Dkt. 40.)
The Court finds as follows.
Union Pacific was a creditor in ASARCO’s 2005 bankruptcy proceeding
seeking to recover its response costs related to the removal of contaminants from certain
properties in Utah, Colorado, Washington, and “the Coeur d’Alene Site in Idaho,”
collectively referred to as the “Remaining Sites.” (Dkt. 15-12, Ex. I at p. 2.) Union Pacific
filed Proofs of Claim against ASARCO in the bankruptcy case seeking “contribution and
indemnity for past and future costs of response under CERCLA incurred by [Union Pacific]
at the Remaining Sites....” (Dkt. 15-12, Ex. I at p. 3.) ASARCO disputed those claims. (Dkt.
15-12, Ex. I at p. 3.) In September of 2008, the parties reached a settlement agreement
regarding past environmental response costs and other commercial costs (“Bankruptcy
Settlement”). (Dkt. 15-12, Ex. I.)

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Union Pacific’s Motion to Dismiss filed in this case argues, in part, that
ASARCO’s contribution claim here is barred by the Bankruptcy Settlement. In response,
ASARCO argues it “is not precluded from bringing this action as a result of the Bankruptcy
Case.” (Dkt. 40 at 2.) ASARCO maintains it did not release Union Pacific from its CERCLA
contribution liability in the Bankruptcy Settlement. (Dkt. 40 at 2.) Union Pacific counters that
the plain language of the Bankruptcy Settlement bars all of ASARCO’s claims. (Dkt. 41 at
2.)
The Bankruptcy Settlement states:
WHEREAS, this Settlement Agreement is intended to serve as
a comprehensive settlement of all the claims by [Union Pacific]
or claims which [Union Pacific] could have filed against
ASARCO with respect to Past Response Costs, Remaining Site
Costs, and the Freight Charges;
....
(Dkt. 15-12, Ex. I at p. 4.) Any claims for “Future Costs” were specifically excluded
from the agreement. Under the terms of the agreement Union Pacific was allowed a general
unsecured claim in the total amount of $4,157,572.75. (Dkt. 15-12, Ex. I at p. 5.) That total
amount was allocated between the freight charges and properties other than the Remaining
Sites. As to the Remaining Sites, the agreement states that claim “equals zero and Union
Pacific will withdraw its claims related to such sites.” (Dkt. 15-12, Ex. I at p. 6.) The written
agreement also contains a section entitled “Mutual Releases” which reads as follows:

MEMORANDUM DECISION AND ORDER - 9

V. MUTUAL RELEASES
4.
UP1 agrees for itself, and on behalf of its officers,
directors, employees, and trustees to hereby release, remise, and
discharge ASARCO and its respective successors, assigns,
officers, directors, employees, and trustees from any and all
damages, losses, expenses, costs, liabilities, claims, demands,
suits, causes of action, and complaints, of any kind, character or
description, in law or in equity, whether known or unknown,
arising out of or in any way connected with: (1) the Freight
Charges as of the Petition Date; (2) Past Response Costs at
Wallace Spur, Wallace Branch, and the OLS; and (3) Remaining
Sites Costs. All claims and rights related to Future Costs are
specifically excluded from and not released by this paragraph.
5.
ASARCO agrees for itself, and on behalf of its officers,
directors, employees, and trustees to hereby release, remise, and
discharge UP and its respective successors, assigns, members,
officers, directors, employees, shareholders, equity owners, and
trustees from any and all damages, losses, expenses, costs,
liabilities, claims, demands, suits, causes of action, and
complaints, of any kind, character or description, in law or in
equity, whether known or unknown, arising out of or in any way
connected with: (1) the Freight Charges as of the Petition Date;
(2) Past Response Costs at Wallace Spur, Wallace Branch, and
the OLS; and (3) Remaining Sites Costs. All claims and rights
related to Future Costs are specifically excluded from and not
released by this paragraph.
6.
This Settlement Agreement in no way impairs the scope
and effect of ASARCO’s discharge under Section 1141 of the
Bankruptcy Code as to any third parties or as to any claims that
are not addressed by this Settlement Agreement.
7.
The mutual releases contained in Paragraphs 4 and 5 of
this Settlement Agreement extend only to ASARCO, UP, and
the other persons described in Paragraphs 4 and 5 above and do
not extend to any other person (as that term is defined in 11

1

Union Pacific is referred to as “UP” in the Bankruptcy Settlement. (Dkt. 15-12, Ex. I.)

MEMORANDUM DECISION AND ORDER - 10

U.S.C. §101). Nothing in this Agreement is intended as a mutual
release from liability for any person or entity other than
ASARCO, UP, and the persons described in Paragraphs 4 and
5. UP and ASARCO expressly reserve all claims, demands, and
causes of action either judicial or administrative, past, present or
future, in law or equity, which UP or ASARCO may have
against all other persons, firms, bankruptcy estates, trusts,
corporations, or entities for any matter arising at or relating in
any manner to: (1) the Freight Charges as of the Petition Date;
(2) Past Response Costs at Wallace Spur, Wallace Branch, and
the OLS; and (3) Remaining Sites Costs.
(Dkt. 15-12, Ex. I at p. 6-7.)
ASARCO maintains it did not release its claim in the Bankruptcy Settlement.
(Dkt. 40 at 13.) Instead, ASARCO contends, the Bankruptcy Settlement released and/or
settled the claims Union Pacific could have filed against ASARCO, not the claim made in
this case by ASARCO against Union Pacific. (Dkt. 40 at 13-14.) In support of its position,
ASARCO points to: the Joint Motion for Order Approving Compromise and Settlement and
the Bankruptcy Settlement. (Dkt. 40 at 14.) The claims at issue in Paragraph 5 of the Joint
Motion, ASARCO argues, are for contribution and indemnity costs “incurred by Union
Pacific.” (Dkt. 40, Ex. 1 at ¶ 5) (emphasis added.) Likewise, Paragraphs 7 and 8 refer to
“[Union Pacific]’s claims”. (Dkt. 40, Ex. 1 at ¶¶ 7, 8.) ASARCO similarly points to
Paragraph 3 of the Bankruptcy Settlement which states “In settlement and satisfaction of all
claims and causes of action of Union Pacific” and then it lists the particular claims allowed.
(Dkt. 15-12, Ex. I at p. 5) (emphasis added.) ASARCO argues the definitions used in the
Bankruptcy Settlement also refer to CERCLA response costs “incurred by [Union Pacific].”

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(Dkt. 40 at 14.) Based on these phrases, ASARCO asserts the Bankruptcy Settlement did not
release Union Pacific from claim by ASARCO for recovery of its response costs.
Union Pacific counters arguing the plain language of the Bankruptcy
Settlement “included something very important to Union Pacific: a broad reciprocal release
by Asarco of any and all claims ‘connected with’ Union Pacific’s release claims against
Asarco. Asarco cannot write this explicit release out of the settlement agreement.” (Dkt. 41
at 5) (emphasis in original.) The Court agrees. See City of Emeryville v. Robinson, 621 F.3d
1251, 1261 (9th Cir. 2010) (“Interpretation of a settlement agreement is a question of
law....”).
The Mutual Releases section of the Bankruptcy Settlement clearly and
unequivocally released as to both parties “any and all...claims,...whether known or unknown,
arising out of or in any way connected with: ... (3) Remaining Sites Costs.” (Dkt. 15-12, Ex.
I at p. 6.) The “Remaining Sites” is defined to include, among others, the “Coeur d’Alene
Site in Idaho.” (Dkt. 15-12, Ex. I at p. 2.) Paragraph 7 of the Bankruptcy Settlement makes
clear that the Mutual Releases’ paragraphs apply to both ASARCO and Union Pacific. (Dkt.
15-12, Ex. I at ¶ 7.) The plain reading of this language leads to only one conclusion, that
Paragraphs 4 and 5 of the Bankruptcy Settlement are exactly what they say they are, mutual
releases. As applicable here, the claims subject to the parties’ agreed upon mutual releases
include “any and all claims,” whether “known or unknown,” “arising out of or are in anyway
connected with” the Coeur d’Alene Site in Idaho. (Dkt. 15-12, Ex. I.) Were it to be read as
ASARCO has suggested, limiting the releases to only Union Pacific’s claims, would be for
MEMORANDUM DECISION AND ORDER - 12

the releases to be anything but mutual. Moreover, had the parties intended differently they
clearly knew how to exclude particular claims; the Bankruptcy Settlement contains specific
and express exclusions for claims and rights relating to Future Costs. (Dkt. 15-12, Ex. I at
¶¶ 4, 5, 8.)
Further, the Court has reviewed the claim raised in the FAC here and concludes
that ASARCO’s claim for contribution raised in this case is connected with the Coeur
d’Alene Site in Idaho as that term is used in the Bankruptcy Settlement. (Dkt. 24.) As stated
previously, this Court is acutely aware of the historical underpinnings related to the
CERCLA claims of this area as well as the previous litigation involving the Coeur d’Alene
Basin. The claim in the FAC is made as to the “Coeur d’Alene Site” which the FAC defines
to include a vast area consisting of 1,500 square miles in northern Idaho and eastern
Washington. (Dkt. 24 at ¶ 1.) The geographical area and procedural history of the claim is
further defined in Paragraphs 22-39. (Dkt. 24.) Given the scope of the definitions used in the
FAC and the plain language of the Bankruptcy Settlement, it is clear that the claim raised in
the FAC is precluded by the mutual release language of the Bankruptcy Settlement.
ASARCO also argues the claim in the FAC was not released in the Bankruptcy
Settlement because it is premised on the CDA Settlement, which had not been finalized or
funded by the time the Bankruptcy Settlement had been approved. (Dkt. 40 at 14.) Thus,
ASARCO argues, the claim raised here did not exist at the time of the Bankruptcy
Settlement. Union Pacific counters that the finalization of the CDA Settlement did not
“trigger accrual of Asarco’s CDA Basin contribution claims against Union Pacific. Rather,
MEMORANDUM DECISION AND ORDER - 13

the CERCLA contribution claims asserted in this case came into existence as soon as Asarco
was the subject of any civil action relating to CDA contamination.... The contribution claims
Asarco now asserts against Union Pacific existed for years before either the Bankruptcy
Court Settlement or the CDA Basin Settlement were approved.” (Dkt. 41 at 3-4) (emphasis
in original.)
It is true that the Bankruptcy Settlement (Dkt. 33-3, Ex. 3) was approved by
the Bankruptcy Court on October 14, 2008, prior to the CDA Settlement being signed on
March 13, 2009 (Dkt. 15-7, Ex. 7). However, the claim in the FAC is made pursuant to
CERCLA’s § 113(f) which states:
Any person may seek contribution from any other person who
is liable or potentially liable under section [1]07(a) of this title,
during or following any civil action under section [1]06 of this
title or under section [1]07(a) of this title. Such claims shall be
brought in accordance with this section and the Federal Rules of
Civil Procedure, and shall be governed by Federal law. In
resolving contribution claims, the court may allocate response
costs among liable parties using such equitable factors as the
court determines are appropriate. Nothing in this subsection
shall diminish the right of any person to bring an action for
contribution in the absence of a civil action under section [1]06
of this title or section [1]07 of this title.
42 U.S.C. § 9613(f) (emphasis added). Based on this language in § 113(f), Union
Pacific argues ASARCO’s contribution claim against it existed “as soon as ASARCO was
the subject of any civil action relating to CDA contamination.” (Dkt. 41 at 3.)
In Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, (2004), the
Supreme Court construed the term “during or following any civil action” found in § 113(f)

MEMORANDUM DECISION AND ORDER - 14

to mean that a contribution claim under § 113(f) is authorized only “during or following” a
civil action brought under § 106 or § 107. Cooper, 543 U.S. at 168. Thus, a party who had
not been sued under § 107(a), could not proceed under § 113(f). See Citrous v. Gross-Jowett
Co. of Northern Cal., 523 F.3d 924, 934 (9th Cir. 2008). The Supreme Court later held that
§ 113(f)(1) “permits suit before or after the establishment of common liability.” United States
v. Atlantic Research Corp., 551 U.S. 128, 138-39 (2007) (finding § 113(f)(1) authorizes a
contribution action to PRPs with common liability stemming from an action instituted under
§ 106 or § 107).
Here, ASARCO has long been subject to CERCLA suits concerning the Coeur
d’Alene Basin. Civil actions against ASARCO for contamination in the Coeur d’Alene Basin
commenced as far back as 1991 when the Coeur d’Alene Tribe filed its case in this Court
against ASARCO and various other mining companies. See Coeur d’Alene Tribe v. ASARCO,
et al., Case No. 91-0342-N-HLR and (Dkt. 24 at ¶ 30.) The United States later brought its
§ 107(a) action against ASARCO in 1996. See United States v. ASARCO, et al., Case No. 9601220N-EJL and (Dkt. 24 at ¶ 31.) Those cases were consolidated and, in 2003, this Court
issued its Order finding ASARCO twenty-two percent liable for the costs of CERCLA
remediation at the Coeur d’Alene Basin Site. See Coeur d’Alene Tribe v. Asarco, Inc., 280
F.Supp.2d 1094 (D. Idaho 2003.) Thus, ASARCO has had a § 113(f) contribution claim
against Union Pacific for some time now. See Atlantic Research Corp., 551 U.S. at 138-39.
Regardless of the timing of when ASARCO’s § 113(f) contribution claim
became ripe, the Court finds ASARCO’s contribution claim was well known to both parties
MEMORANDUM DECISION AND ORDER - 15

prior to and at the time of their negotiations of the Bankruptcy Settlement. Both ASARCO
and Union Pacific were parties in the consolidated cases filed in this Court. In the
Bankruptcy Court proceedings, ASARCO ultimately sought approval of five comprehensive
settlement agreements that were negotiated on a “global basis” so as to resolve the
approximately $3.5 billion of environmental liability claims filed against ASARCO in its
bankruptcy case. (Dkt. 15-2, Ex. A at 1.) One of these comprehensive settlement agreements
is the Bankruptcy Settlement at issue here between ASARCO and Union Pacific. (Dkt. 1512.) With ASARCO seeking approval of such comprehensive type settlements, it would be
unrealistic to believe that ASARCO would negotiate a settlement whereby it would pay off
all of its liabilities and then have to file separate actions to recoup offsets and/or liabilities
owing to it from some of the same parties who participated in the comprehensive settlement
negotiations. As such, the Court finds ASARCO’s argument that its contribution claim did
not exist, or had not yet arisen, at the time of the Bankruptcy Settlement is contrary to the
clear evidence in the record.
3.

Conclusion
The Court has reviewed the record in this matter in light of the parties

arguments raised in their briefing as well as the relevant materials provided from the related
Bankruptcy Court case. Having done so, the Court finds ASARCO’s claims raised in the
FAC are barred by the terms of the Bankruptcy Settlement entered into between ASARCO
and Union Pacific. Because the Court has determined that the Bankruptcy Settlement
precludes ASARCO’s claims, the Court need not address Union Pacific’s arguments
MEMORANDUM DECISION AND ORDER - 16

concerning res judicata, judicial estoppel, contribution claim rights, or Union Pacific’s prior
Consent Decrees.
Union Pacific has also filed a Motion to Strike the supplemental authority filed
by ASARCO. (Dkt. 44.) The filings, Union Pacific asserts, were improperly filed, are not
binding precedent on this Court, are based on different factual circumstances and legal
arguments, and are not pertinent and significant authority for which supplementation is
appropriate. (Dkt. 44.) The Court finds the Motion is moot. (Dkt. 44.) Prior to the
supplemental materials being filed, this Court had discovered and reviewed those orders in
its own research on this case.

ORDER
NOW THEREFORE IT IS HEREBY ORDERED that Defendants’ Motion
to Dismiss (Dkt. 31) is GRANTED. This case is HEREBY DISMISSED IN ITS
ENTIRETY.
IT IS FURTHER ORDERED that the Defendants’ Motion to Strike (Dkt. 44)
is MOOT.
DATED: March 28, 2013

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM DECISION AND ORDER - 17