Diamond X Ranch, LLC v. Atlantic Richfield Company

Filing 300

ORDER - ARCO's Motion for Summary Judgment on Diamond X's Tort Claims as Barred by the Statute of Limitations (ECF No. 228 ) is granted in part and denied in part. It is further ordered that ARCO's Motion for Summary Judgment on Diamond X's Seventh and Eighth Claims under CERCLA (ECF No. 229 ) is granted in part and denied in part. It is further ordered that ARCO's Motion for Summary Judgment to Limit or Dismiss Diamond X's Tort Claims (ECF No. 230 ) is granted in part and denied in part. It is further ordered that Diamond X's Motion for Partial Summary Judgment Concerning ARCO's Liability as to CERCLA and Certain Common Law Claims (ECF No. 231 ) is denied. It is further or dered that ARCO's Motion for Partial Summary Judgment on ARCO's CERCLA Claims against Diamond X and Park Livestock (ECF No. 248 ) is granted. Signed by Judge Miranda M. Du on 9/29/2017. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DIAMOND X RANCH LLC,
Plaintiff/Counterclaim
Defendant,

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ORDER

v.
ATLANTIC RICHFIELD COMPANY,

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Defendant/Counterclaimant/
Third-Party Plaintiff,

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v.

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Case No. 3:13-cv-00570-MMD-WGC

PARK LIVESTOCK CO.,
Third-Party Defendant.

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I.

SUMMARY

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This case concerns cleanup of acid mine drainage (“AMD”) from a Superfund site

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and its surrounding areas. Pending before the Court are five motions: (1) Defendant

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Atlantic Richfield’s (“ARCO”) Motion for Summary Judgment on Diamond X Ranch LLC’s

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(“Diamond X”) Tort Claims as Barred by the Statute of Limitations (“SOL Motion”) (ECF

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No. 228); (2) ARCO’s Motion for Summary Judgment on Diamond X’s Seventh and Eighth

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Claims under CERCLA (“CERCLA I Motion”) (ECF No. 229); (3) ARCO’s Motion for

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Summary Judgment to Limit or Dismiss Diamond X’s Tort Claims (“Tort Motion”) (ECF

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No. 230); (4) Diamond X’s Motion for Partial Summary Judgment Concerning ARCO’s

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Liability as to CERCLA and Certain Common Law Claims (“Liability Motion”) (ECF No.

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231); and (5) ARCO’s Motion for Partial Summary Judgment on ARCO’s CERCLA Claims

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against Diamond X and Park Livestock, Co. (“CERCLA II Motion”) (ECF No. 248). The

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Court has reviewed Diamond X’s responses (ECF Nos. 260, 261, 262) and reply (ECF

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No. 285), ARCO’s response (ECF No. 258) and replies (ECF Nos. 282, 283, 284), as well

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as the accompanying exhibits. The Court also heard oral arguments on these pending

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motions on August 30, 2017. (ECF No. 296.)

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For the reasons discussed below, the SOL Motion is granted in part and denied in

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part; the Tort Motion is granted in part and denied in part; the Liability Motion is denied;

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the CERCLA I Motion is granted in part and denied in part; and the CERCLA II Motion is

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granted.

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II.

BACKGROUND

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Diamond X initiated this action on October 15, 2013, against ARCO. (ECF No. 1.)

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It filed its Third-Amended Complaint (“TAC”) on March 18, 2016. (ECF No. 175.) ARCO

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then filed its Counterclaim against Diamond X and Third-Party Complaint against Park

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Livestock Co. (“Park Livestock”) on March 30, 2016. (ECF No. 179.) The following facts

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are undisputed except as noted.

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Diamond X currently owns the River Ranch property (“Property” or “River Ranch”),

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which is comprised of more than 1700 acres in Douglas County, Nevada, and Alpine

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County, California. (ECF No. 231-1 at 11; ECF No. 175 at ¶ 7.) Park Livestock has leased

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the River Ranch since its incorporation in 1974 until at least 2007. (ECF No. 260 at 8.)

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The Property has been owned by the Park family for the last 100 years. (See ECF No.

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175 at ¶ 26; ECF No. 227-39 at 15 (“Through an interview with Mr. David Park . . . we

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found that the Park family has owned the property since the 1890s.”).) In 1974, the

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Property was owned by W. Brooks Park and Jeanne Park. (ECF No. 260 at 8.) The

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Property was then transferred to the W. Brooks Park Family Trust in 1985. (Id. at 9.)

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Diamond X obtained the Property via trust distribution in 2003. (Id.) Diamond X’s two

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principals are David Park and W. Bruce Park and David Park is the current president and

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majority shareholder of Park Livestock. (ECF No. 225 at ¶ 5.)

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In 1951, ARCO’s predecessor, The Anaconda Company (“Anaconda”), acquired

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the Leviathan Mine (“Mine”) where it conducted open-pit sulfur mining from approximately

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1953 to 1962. (ECF No. 248 at 7; ECF No. 175 at ¶ 7.) Water that came in contact with

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waste rock at the Mine created AMD, which contains elevated concentrations of heavy

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metals such as arsenic. (ECF No. 248 at 7.)

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In 1997, the U.S. Environmental Protection Agency (“EPA”) began to take action

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at the Mine under the Comprehensive Environmental Response, Compensation, and

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Liability Act (“CERCLA”). (ECF No. 248 at 7; ECF No. 175 at ¶ 15.) EPA listed the Mine

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on the National Priorities List in May 2000, and it identified ARCO and the State of

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California as potentially responsible parties (“PRPs”). (ECF No. 175 at ¶ 17.) EPA issued

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a Unilateral Administrative Order (“UAO”) against ARCO in November 2000 and a second

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UAO against ARCO in June 2008 (collectively “UAOs”). (ECF No. 246-3 at 90-139

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(Exhibit 148); ECF No. 227-1.)

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The UAOs identified ARCO as a PRP1 and required ARCO to initiate a Remedial

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Investigation and Feasibility Study (“RI/FS”) of contamination from the Mine and to

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prepare and perform an RI/FS based on a Statement of Work (“SOW”). The purposes of

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the UAOs were (1) to determine the nature and scope of contamination from the Mine

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and its threat to public health and the environment, and (2) to determine and evaluate

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alternatives to effectively remediate the contamination through a feasibility study. (ECF

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No. 249-5 at 6; ECF No. 246-3 at 92; ECF No. 227-3 at 16.) Under the SOW, ARCO was

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required to conduct a “phased” evaluation to determine the available remedial

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approaches and to then compile this information into a report. (ECF No. 227-1 at 47.) The

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River Ranch became included in the study area of ARCO’s remedial investigation in 2012.

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(ECF No. 227-3 at 19 (including portions of the River Ranch in the supplemental study

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January 21, 2009, EPA and ARCO entered into an Administrative Settlement
Agreement and Order on Consent for Removal Action, wherein ARCO admitted that the
Mine is a “facility” under CERCLA, the contamination found at the Mine includes
“hazardous substances,” ARCO is the successor to the liabilities of Anaconda, and the
discharge of AMD from the Mine constitutes an actual or threatened release of hazardous
substances. (ECF No. 246-3 at 1-51 (Exhibit 136).)
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area); ECF No. 227-7 at 15 (including irrigated portions of the River Ranch in the

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supplemental study area).)

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III.

LEGAL STANDARD

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“The purpose of summary judgment is to avoid unnecessary trials when there is

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no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric.,

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18 F.3d 1468, 1471 (9th Cir. 1994) (internal citation omitted). Summary judgment is

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appropriate when the pleadings, the discovery and disclosure materials on file, and any

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affidavits show “there is no genuine issue as to any material fact and that the moving

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party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317,

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330 (1986). An issue is “genuine” if there is a sufficient evidentiary basis on which a

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reasonable fact-finder could find for the nonmoving party and a dispute is “material” if it

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could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby,

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Inc., 477 U.S. 242, 248-49 (1986). Where reasonable minds could differ on the material

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facts at issue, however, summary judgment is not appropriate. See id. at 250-51. “The

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amount of evidence necessary to raise a genuine issue of material fact is enough ‘to

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require a jury or judge to resolve the parties' differing versions of the truth at trial.’” Aydin

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Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities

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Serv. Co., 391 U.S. 253, 288-89 (1968)). In evaluating a summary judgment motion, a

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court views all facts and draws all inferences in the light most favorable to the nonmoving

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party. Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir.

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1986).

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The moving party bears the burden of showing that there are no genuine issues of

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material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). “In order

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to carry its burden of production, the moving party must either produce evidence negating

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an essential element of the nonmoving party’s claim or defense or show that the

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nonmoving party does not have enough evidence of an essential element to carry its

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ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd v. Fritz Cos.,

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Inc., 210 F.3d 1099, 1102 (9th Cir. 2000) (internal citation omitted). Once the moving
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party satisfies Rule 56’s requirements, the burden shifts to the party resisting the motion

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to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477

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U.S. at 256. The nonmoving party “may not rely on denials in the pleadings but must

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produce specific evidence, through affidavits or admissible discovery material, to show

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that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991),

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and “must do more than simply show that there is some metaphysical doubt as to the

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material facts.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 783 (9th Cir. 2002) (internal

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citations omitted). “The mere existence of a scintilla of evidence in support of the plaintiff’s

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position will be insufficient.” Anderson, 477 U.S. at 252.

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A party is also permitted to seek partial summary judgment as to any claim or

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defense in a case. Fed. R. Civ. P. 56(a); see also First Nat’l Ins. Co. v. Fed. Deposit Ins.

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Corp., 977 F. Supp. 1051, 1055 (S.D. Cal. 1997) (a court may grant summary adjudication

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as to specific issues if it will narrow the issues for trial). A district court may award a partial

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summary judgment that decides only the issue of liability. White v. Lee, 227 F.3d 1214,

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1240 (9th Cir. 2000).

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Further, “when parties submit cross-motions for summary judgment, ‘[e]ach motion

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must be considered on its own merits.’” Fair Hous. Council of Riverside Cty., Inc. v.

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Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001) (quoting William W. Schwarzer, et

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al., The Analysis and Decision of Summary Judgment Motions, 139 F.R.D. 441, 499 (Feb.

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1992) (citations omitted)). “In fulfilling its duty to review each cross-motion separately, the

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court must review the evidence submitted in support of each cross-motion.” Id.

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IV.

CHOICE OF LAW

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As a preliminary matter, the parties dispute whether California or Nevada law

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controls Diamond X’s tort claims. (See ECF No. 231-1 at 24-25; see also ECF No. 258 at

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20-24.) The Court finds that Nevada law applies to these claims.

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A federal district court applies the choice-of-law rules of the forum state when

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exercising jurisdiction over state law claims. Love v. Associated Newspapers, Ltd., 611

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F.3d 601, 610 (9th Cir. 2010); Paracor Fin., Inc. v. Gen. Elec. Capital Corp., 96 F.3d 1151,
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1164 (9th Cir. 1996). In Nevada, the Second Restatement’s most significant relationship

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standard generally governs choice-of-law issues in tort actions. Gen. Motors Corp. v.

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Eighth Judicial Dist. Court of State of Nev. ex rel. Cty. of Clark, 134 P.3d 111, 116 (Nev.

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2006). Pursuant to the Second Restatement, the place where the injury occurred

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determines the law to be applied, unless some other state has a more significant

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relationship to the “occurrence and the parties.” Id. (citing RESTATEMENT (SECOND) OF

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CONFLICT OF LAWS § 145 (AM. LAW INST. 1971); see also RESTATEMENT (SECOND) OF

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CONFLICT OF LAWS § 147 (AM. LAW INST. 1971) (“In an action for an injury to land . . . the

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local law of the state where the injury occurred determines the rights and liabilities of

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parties unless, with respect to the particular issue, some other state has a more significant

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relationship[.]”).

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When determining what state has the most significant relationship, the court must

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look to such things as: the needs of the interstate system; the relevant policies of the

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forum; the relevant policies of other interested states and the relative interest of those

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states in the determination of the particular issue; the protection of justified expectations;

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the basic policies underlying the particular field of law; certainty, predictability, and

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uniformity of result; and ease in the determination and application of the law to be applied.

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RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 6 (AM. LAW INST. 1971)

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Diamond X contends that California law applies to its tort claims because “the

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majority of contaminated River Ranch land is in California.” (ECF No. 231-1 at 25.)

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However, the primary basis for Diamond X’s claims is that a portion of the River Ranch

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has been contaminated by water diverted from Bryant Creek such that the Property

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cannot be developed into a residential subdivision.2 (ECF No. 175 at ¶¶ 28-29.) This

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the TAC, Diamond X also states that it is precluded from continued ranching
on the Property because “any livestock pastured on the River Ranch Property will drink
the contaminated irrigation water and graze on metal-poisoned vegetation growth in
metal-laden soil.” (ECF No. 175 at ¶ 28.) However, Diamond X states that it brought suit
“protectively” once it realized that its proposed alternative use—building a residential
community—was also precluded absent extensive remediation costs. (See ECF No. 261
at 30; see also ECF No. 175 at ¶¶ 29-30.)
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subdivision was to be located entirely in Nevada. (See ECF No. 255-9 at 6.) In addition,

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Bryant Creek runs through the portion of the Property that is located in Nevada, and the

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main diversion point from Bryant Creek for irrigation purposes is also located in Nevada.

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(See, e.g., ECF No. 254-3 at 17, 41.) Although some of the contaminated land is in

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California, the land was contaminated by using water diverted from the Bryant Creek

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irrigation ditch in Nevada.3 (See ECF No. 242 at 342-346.) Other evidence also highlights

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that Nevada is the state with the most significant relationship to this case. For instance,

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Diamond X sought the involvement of the Nevada Division of Environmental Protection

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(“NDEP”) as opposed to soliciting a similar California state agency. (See ECF No. 264 at

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¶ 8; see also ECF No. 227-9 at 8.) As such, the state of Nevada has the strongest interest

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in the resolution of this case.
For these reasons, the Court finds that Nevada law controls Diamond X’s state law

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tort claims.

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V.

SOL Motion (ECF No. 228)

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ARCO contends that Diamond X’s first through sixth claims for relief are barred by

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the statute of limitations. (ECF No. 228 at 18-23.) The Court agrees with ARCO that the

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statute of limitations applies to Diamond X’s claims but finds that there is a genuine issue

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of material fact as to whether the continuing tort doctrine applies to its claims for trespass,

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private nuisance, negligence, and wrongful appropriation of water rights.4

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A.

Legal Standard

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Under CERCLA, if a state statute of limitations provides a commencement date for

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claims resulting from a release of contaminants that is earlier than the federal

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water was also diverted via Cottonwood Creek to carry water to River
Ranch parcel 7, which is located in California. (ECF No. 254-3 at 19.) However, the
samples that Diamond X’s expert Dr. Dagdigian took from the portion of the Property
located in California were irrigated with water from Bryant Creek (as these samples
appear to be taken from parcel 8). (See ECF No. 242 at 340, 343.)
4The Court disposes of the public nuisance claim because there is no such private
right of action under Nevada law. See discussion infra Sec. VI(B). The Court also grants
summary judgment in favor of ARCO as to Diamond X’s strict liability claim. See
discussion infra Sec. V(D).
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commencement date, then plaintiffs benefit from the more generous commencement

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date. See O’Connor v. Boeing N. Am., Inc., 311 F.3d 1139, 1146 (9th Cir. 2002). The

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federal commencement date, 42 U.S.C. § 9658, therefore preempts a state statute of

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limitations if the state’s limitations period begins at an earlier date. O’Connor, 311 F.3d at

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1146.

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In Nevada, a cause of action “accrues when the wrong occurs and a party sustains

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injuries for which relief could be sought.” Petersen v. Bruen, 792 P.2d 18, 20 (Nev. 1990).

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However, Nevada also employs the “discovery rule” whereby “the statutory period of

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limitations is tolled until the injured party discovers or reasonably should have discovered

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facts supporting a cause of act.” Id. Normally when a plaintiff has or should have

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discovered the cause of her injury is a question of fact, but when “uncontroverted

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evidence proves that the plaintiff discovered or should have discovered the facts giving

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rise to the claim” then a determination may be made as a matter of law. Siragusa v.

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Brown, 971 P.2d 801, 812 (Nev. 1998).

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A party is barred from asserting a discovery rule tolling defense where she fails to

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exercise reasonable diligence in attempting to discover the cause of her injury. Orr v.

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Bank of Am., NT & SA, 285 F.3d 764, 780 (9th Cir. 2002). In other words, an individual is

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put on inquiry notice when she should have known of facts that “would lead an ordinarily

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prudent person to investigate the matter further.” Winn v. Sunrise Hosp. & Med. Ctr., 277

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P.3d 458, 462 (Nev. 2012) (internal quotation marks and citation omitted). Similarly, under

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the federal discovery rule, a plaintiff reasonably should have known of her claim when a

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reasonable person in her situation would have been expected to inquire about the cause

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of her injury and an inquiry would have disclosed the nature and cause of her injury so as

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to put her on notice of her claim. O’Connor, 311 F.3d at 1150.

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While the Nevada and federal discovery rules are similar, the Court finds that the

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federal rule is more generous because it requires both that the plaintiff be aware of her

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injury and that an inquiry into the cause of the injury would give her notice of her claim.

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Therefore, the Court utilizes the federal standard in determining whether Nevada’s

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statutes of limitation for the various tort claims bar Diamond X’s claims.

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B.

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ARCO contends that Diamond X knew the facts underlying its claim long before

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October 2009.5 (ECF No. 228 at 9.) The Court agrees and finds that, viewing the evidence

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in the light most favorable to Diamond X, the latest date that Diamond X was aware of the

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facts underlying its claim was when W. B. Park Land Company LLC’s6 attorney sent a

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letter to the state of California, EPA, and a variety of other entities.7 In this letter, dated

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March 19, 2007, the attorney informed the various entities that:

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Accrual Date

W.B. Park Land Company, LLC will no longer be grazing cattle on its
property downstream from the Leviathan Mine, based upon an assessment
of the damages caused by the Leviathan Mine. In addition, for the present
time, it will no longer be irrigating the property. These decisions have been
made because of the damage caused by the trespass by and the
contamination from the Leviathan mine.

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(ECF No. 227-42 (emphasis added).) The letter shows that Diamond X believed that the

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contamination from the Mine caused it damage such that it would cease irrigation and

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cattle grazing activities. At a minimum, based on the information in the letter, Diamond X

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was aware of its injury, would have been expected to inquire about the cause of its injury,

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and an inquiry would have disclosed the nature and cause of Diamond X’s injury so as to

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put Diamond X on notice of its claim. This is because Diamond X had more evidence than

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just the information upon which the letter was based.

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ARCO relies on this date because the lawsuit was filed in October 2013 and the
various torts have limitations periods ranging from two to four years. (ECF No. 229 at 9;
ECF No. 283 at 7.)
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Diamond X was formed as W.B. Park Land Company, LLC in April 2003 and its
name was changed to Diamond X Ranch LLC in January 2010. (See ECF No. 227-16 at
7; see also ECF No. 227-10.)
7Diamond X argues that because ARCO raised the statute of limitations as an
affirmative defense, ARCO bears the burden of proving that Diamond X’s injuries and
damages occurred outside the statute of limitations period. (ECF No. 261 at 22 (citing
California Sansome Co. v. U.S. Gypsum, 55 F.3d 1402, 1408 (9th Cir. 1995).) At the
hearing on August 30, ARCO presented evidence of dates from which the Court could
reasonably find Diamond X’s claims to have accrued by. Therefore, the Court finds that
ARCO has met its burden to show that the accrual date occurred outside of the limitations
period.
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In fact, there is ample evidence available up to that point that Diamond X knew

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that Bryant Creek and some of the Property was contaminated to some degree by AMD

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from the Mine. For instance, in 2005 Diamond X hired an environmental consultant,

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Robison Engineering Company (“Robison”), to conduct a Phase I Environmental Site

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Assessment of the River Ranch. (ECF No. 227-39.) In its report, Robison states that

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“Bryant Creek, which crosses portions of the River Ranch, has been contaminated with

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heavy metals that originated from [AMD] from the Leviathan Mine” and that the water from

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Bryant Creek was “ultimately used to irrigate the fields around and southwest of the ranch

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house.” (Id. at 5, 15.) While this report ultimately found that “very little is known about the

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impacts that this irrigation has had on the site soils” (id. at 21), the report repeatedly stated

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that Bryant Creek was contaminated, therefore putting Diamond X on notice, at a

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minimum, of its claim for wrongful appropriation of water rights.

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Then, after conducting another study in 2006, Robison sent David Park a letter

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report indicating that soils on portions of the Property “have significantly elevated

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concentrations of heavy metals as a result of irrigation with the Bryant Creek water, when

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compared against baseline samples from an earlier study conducted in the area” and that

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there were elevated concentrations of arsenic, iron, and thallium that exceed EPA’s

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preliminary remediation goals for residential soil. (ECF No. 227-40 at 2, 8.) At the very

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least, this put Diamond X on notice that there was some degree of contamination on the

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Property as a result of AMD pollution to Bryant Creek. Moreover, in February of 2004,

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W.B. Park Land Company LLC’s attorney sent ARCO a demand letter threatening to sue

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ARCO for contamination to the Property—contamination that affected its use of the

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Property—and for loss of use of its water rights.8 (ECF No. 254-4.) This further

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demonstrates that prior to October 2009 Diamond X was on notice of contamination of its

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8David

Park admitted in a deposition taken on August 5, 2015, that the 2005
Robison report notified them that Bryant Creek was contaminated with heavy metals
resulting from AMD emitted from the Mine but contested the extent of the contamination.
(See ECF No. 254-2 at 16.)
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Property and that the likely cause of that contamination and loss of use of water rights

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was AMD from the Mine.

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In response, Diamond X states two reasons why ARCO cannot prevail on its

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statute of limitations argument: “(1) the evidence demonstrates agreement amongst all of

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the persons investigating River Ranch there was an insufficient basis, prior to 2012, to

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determine the Mine had caused elevated concentrations of arsenic on the River Ranch;

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and (2) the evidence demonstrates it remained an open question prior to 2012, despite a

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multi-year investigation, whether the River Ranch had suffered actual injury or damage

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that would restrict use of the property.” (ECF No. 261 at 25.) However, certainty of cause

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or of the extent of injury is not required to trigger the commencement date. See Siragusa

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971 P.2d at 807 (“The statute [of limitations] should not commence to run until the plaintiff

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with due diligence knows to a reasonable probability of injury, its nature, its cause, and

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the identity of the allegedly responsible defendant.”) (internal quotation marks and citation

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omitted) (emphasis added)); see also Wallace v. Kato, 549 U.S. 384, 391 (2007) (“The

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cause of action accrues even though the full extent of the injury is not then known or

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predictable.”) (internal quotation marks and citation omitted).

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Moreover, even if Diamond X did not know until 2012 that it could not develop the

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Property into a residential development, it was aware of some injury to its land and water

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rights caused by contamination from the Mine that affected some use of the Property,

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thereby triggering inquiry notice. Diamond X relies on the Ninth Circuit’s decision in

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O’Connor to argue that because it did not know the nature of its injury—specifically that

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it had lost “an unrestricted ability to develop the Property”—and because environmental

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consultants “were unable or unwilling to draw a conclusion about whether the arsenic

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contamination at River Ranch could have resulted from causes other than the releases

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from the Mine” there are triable issues of fact. (ECF No. 261 at 27.) However, this case

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is dissimilar from O’Connor in two important respects.

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First, in O’Connor, there was a factual dispute as to whether the plaintiffs should

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have inquired about the contamination from the testing facilities as the cause of their
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cancers. 311 F.3d at 1151. The plaintiffs’ doctors had never advised them that their

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conditions may have been related to pollution from the testing facilities and publicly

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available information pointed to a variety of products as potential causes of cancer. Id.

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Thus, it was up for debate as to whether to impute knowledge to plaintiffs based on

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publicity about pollution at the testing facility. By contrast, here, Diamond X did inquire

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into contamination on the Property by employing various consultants beginning in 2005.

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(See, e.g., ECF No. 227-39.) In addition, the 2007 letter indicates that Diamond X strongly

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believed, based on its inquiry, that the Mine was the cause of contamination of the

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Property, so much so that it ceased irrigating the Property with water from Bryant Creek,

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which it knew to be contaminated with AMD from the Mine. Thus, based on this

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undisputed evidence, the Court is able to impute knowledge to Diamond X as to the cause

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of its injury.

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Second, in O’Connor, there was a factual dispute as to whether and when the

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plaintiffs had the “means to test the potential causes of their diseases in a way that would

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disclose the nature and cause of their injuries so as to put them on notice of their claims.”

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311 F.3d at 1156 (internal quotation marks omitted). By contrast, from the Robison reports

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Diamond X was on notice in 2005 that Bryant Creek water was contaminated by AMD

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from the Mine and in 2006 that a portion of the soil on the Property contained elevated

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levels of arsenic that were above residential levels. Diamond X argues that there is a fact

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issue as to whether it could have developed the facts underlying its claim sooner given

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“ARCO’s sophistication and longstanding duty to EPA to develop such facts.” (ECF No.

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261 at 28.) However, there is no dispute that Diamond X had the means to inquire into

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whether contamination affected the use of the Property and whether AMD from the Mine

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was the cause of the contamination because it actually did so, as evidenced in the 2005

25

and 2006 Robison reports and the 2007 letter from its attorney.9

26
27
28

9Diamond

X claims that it was not in the position to develop the facts sooner, but
according to the 2005 Robison report, EPA had requested access to the Property to test
soil samples, which the Park family denied. (ECF No. 227-39 at 19.)
12

1

C.

Applicability of Continuing Tort Doctrine

2

Where a plaintiff can show that its claim is a continuing violation, the statute of

3

limitations serves only to limit damages to those incurred within the limitations period

4

before the suit was filed. See Skokomish Indian Tribe v. United States, 410 F.3d 506, 518

5

(9th Cir. 2005). “To show a continuing violation, the plaintiff must demonstrate that the

6

damage is reasonably abatable, which means that the condition can be removed without

7

unreasonable hardship and expense.” Id. (internal quotation marks, alterations, and

8

citation removed). Alternatively,10 a continuing violation may be established where

9

“contaminants continue to migrate through land and groundwater causing new and

10

additional damage on a continuous basis.” Beck Dev. Co. v. S. Pac. Transp. Co., 52 Cal.

11

Rptr. 2d 518, 557 (Cal. Ct. App. 1996).

12

The Court finds that there is a genuine issue of material fact as to whether AMD

13

continues to contaminate the River Ranch—by way of migration or otherwise—and

14

whether abatement of the contamination on the Property is reasonable.

15

ARCO argues that there is no evidence that contaminants continue to migrate

16

through land and groundwater on the Property causing new and additional damage to the

17

Property on a continuous basis. (ECF No. 228 at 27.) The Court disagrees. Although

18

Diamond X stopped irrigating the River Ranch with Bryant Creek water, Diamond X points

19

to evidence in the record indicating that AMD from the Mine continues to release into and

20

within the Bryant Creek watershed, contaminating the Property that is located on Bryant

21

Creek. (ECF No. 261 at 38.) Moreover, Diamond X’s expert testified that the contaminants

22

will spread through the action of wind and rainwater on the Property (ECF No. 254-3 at

23

13), which potentially could spread the contamination from the soil to other parts of the

24

Property or to plant tissues on the Property. Because continuing activity by Defendant—

25

i.e., use of the Mine—is not necessary to establish certain types of continuing violations,

26
27
28

10The

Court agrees with Diamond X that it need not prove that all three possible
tests for determining a continuing violation be established to invoke the doctrine. (See
ECF No. 261 at 36.)
13

1

see Mangini v. Aerojet-Gen. Corp. (Mangini I), 230 Cal. App. 3d 1125, 1147 (Cal. Ct. App.

2

1991) (“[t]he ‘continuing’ nature of the nuisance refers to the continuing damage caused

3

by the offensive condition, not to the acts causing the offensive condition to occur”), at a

4

minimum Diamond X has demonstrated that there is a genuine issue of material fact as

5

to whether the contaminants continue to migrate through the Property causing new and

6

additional damages.

7

ARCO also argues that the contamination is not reasonably abatable. (ECF No.

8

228 at 27-28; ECF No. 283 at 16.) Whether the contamination is reasonably abatable

9

turns on whether it can be remedied at a reasonable cost by reasonable means. Mangini

10

v. Aerojet-Gen. Corp. (Mangini II), 912 P.2d 1220, 1229 (Cal. 1996). In determining

11

whether something is reasonably abatable, courts may look to such considerations as

12

expense, time, and legitimate competing interests. Beck, 52 Cal. Rptr. 2d at 558-59.

13

Diamond X points out that there are several purported methods and estimations regarding

14

the cost of abatement. (ECF No. 261 at 36-37.) For instance, one of ARCO’s experts

15

estimated that the cost of abatement would be roughly $5 million for soil remediation while

16

Diamond X’s experts estimated the cost to be between $16 and $24 million for soil

17

remediation and roughly $2.7 million for water cleanup, and these experts contest the

18

appropriate mechanism to remediate the arsenic-contaminated soils.11 (See ECF No.

19

263-1 at 214-218; ECF No. 242 at 155-157; ECF No. 227-43 at 15.) Therefore, Diamond

20

X has shown that there is a genuine issue of material fact as to whether abatement of the

21

contamination is reasonable.

22

ARCO also argues that Diamond X’s proposed abatement is barred by CERCLA

23

§§ 113(h) and 122(e)(6)’s preclusion of private cleanup work at a site after an RI/FS has

24
25
26
27
28

11Moreover,

there is a dispute about the value of the Property (see ECF No. 258
at 11), which is a relevant consideration in light of the Ninth Circuit’s ruling in Skokomish
Indian Tribe. See Skokomish Indian Tribe, 410 F.3d at 518 (“finding that because the
property was valued at $2,170,040 before the damage and that the total remediation cost
was $3,770,500, the large discrepancy between the value of the property and the cost of
repair showed abatement could only be achieved with unreasonable hardship and
expense”).
14

1

been initiated unless it is based upon prior approval by EPA. (ECF No. 228 at 27-31.)

2

However, there is no contention that receiving monetary damages from ARCO for the

3

contamination of the Property requires that Diamond X cleanup12 the Property or amount

4

to a challenge to the cleanup methods selected by EPA in cleaning up the River Ranch if

5

it instructs ARCO to do so. Challenges to CERCLA cleanups generally include such

6

actions “where the plaintiff seeks to dictate specific remedial actions; to postpone the

7

cleanup; to impose additional reporting requirements on the cleanup; or to terminate the

8

RI/FS and alter the method and order of cleanup.” ARCO Envtl. Remediation, L.L.C. v.

9

Dep’t of Health & Envtl. Quality of Mont., 213 F.3d 1108, 1115 (9th Cir. 2000) (internal

10

citations omitted). Recovering damages for particular continuing torts does not amount to

11

any of the aforementioned actions.

12
13

Therefore, the Court finds that there is a genuine issue of material fact as to
whether the continuing tort doctrine applies to Diamond X’s claims.

14

D.

Claims Benefitting from the Continuing Tort Doctrine

15

ARCO argues that as a matter of law the continuing tort doctrine applies only to

16

trespass and nuisance claims and, therefore, the claims for negligence, strict liability, and

17

misappropriation of water rights may not proceed if the Court finds that the statute of

18

limitations applies. (ECF No. 228 at 23-24.) Diamond X counters that because ARCO’s

19

offending acts and omissions are ongoing, Diamond X may benefit from the doctrine as

20

to all of its tort claims. (ECF No. 261 at 43.)

21

The Court finds that the continuing tort doctrine does not apply to the claim for

22

strict liability. Diamond X cites to Christian v. Atl. Richfield Co., 358 P.3d 131, 150 (Mont.

23
24
25
26
27
28

relied on an amicus brief that the Department of Justice (“DOJ”) attempted
to submit in a Montana state case. (ECF Nos. 278, 278-2.) In that case, the plaintiffs had
filed claims for negligence, nuisance, trespass, and strict liability (as well as others) and
sought recovery of restoration damages. (ECF No. 278-2 at 20.) DOJ argued that
because a grant of restoration damages in Montana requires that the damage award
actually be used to abate the injury to one’s property, this is inconsistent with the CERCLA
remedy already approved by EPA and is therefore not authorized under §§ 113(h) and
122(e)(6). (Id. at 21, 25, 36.) The Court is not persuaded. There is no claim by ARCO that
Nevada requires that damages for a continuing trespass or nuisance, see discussion infra
Sec. 5(D), be used towards abatement of the injury.
12ARCO

15

1

2015), in support of application of the continuing tort doctrine to a strict liability claim.

2

(ECF No. 261 at 43.) That case applies Montana law and is unpersuasive here. Moreover,

3

applying the doctrine to Diamond X’s strict liability claim would erode the purpose of the

4

statute of limitations because strict liability does not require a showing of intent or fault

5

and, therefore, the tort would inherently be continuing in nature.

6

The Court finds that the doctrine may apply to Diamond X’s claims for negligence13

7

and for misappropriation of water rights in addition to its claims for trespass and nuisance

8

because there is a genuine issue of material fact as to whether AMD released during the

9

limitations period into Leviathan Creek contaminated Bryant Creek and Diamond X’s

10

parcels of land that abut the Creek. Therefore, to the extent any AMD released from the

11

Mine infected Bryant Creek during the limitations period, this may have impacted

12

Diamond X’s water rights or caused injury to Diamond X’s parcels that abut the Creek,

13

but a genuine issue of material fact remains as to whether ARCO’s own acts or omissions

14

resulted in these releases or caused a bona fide injury. (See ECF No. 179 at ¶ 22 (“any

15

such discharges are [not] adversely affecting water quality in Bryant Creek at the point at

16

which Diamond X previously diverted water on its property for irrigation”): see ECF No.

17

261 at 38 (“there is also evidence of continued releases into and within the Bryant Creek

18

watershed for which Diamond X had water rights”); see also ECF No. 258 at 13 (“The

19

amount of AMD from the Leviathan Mine that is not currently collected and treated is less

20

than one percent of the total volume of water in the Leviathan, Bryant Creek watershed”).)

21

Therefore, summary judgment is granted in favor of ARCO as to Diamond X’s

22

fourth claim for strict liability but denied as to the other claims.

23

E.

24

ARCO contends that if the Court finds that the continuing tort doctrine applies to

25

Diamond X’s nuisance and trespass claims, Diamond X should be limited to loss-of-use

26
27
28

Damages for Continuing Torts

13See

People of the State of California v. Kinder Morgan Energy Partners, L.P.
(Kinder I), 569 F. Supp. 2d 1073, 1086 (S.D. Cal. 2008) (“Where an injury results from a
negligent act and injury continues by reason of continued negligence, a recovery may be
had for damages caused by the continuing negligence even if the claim for the original
injury might be time barred.”).
16

1

damages during the limitations period preceding commencement of this action and may

2

not recover environmental cleanup costs or punitive damages. (ECF No. 228 at 31-32.)

3

Diamond X contends that it can elect to pursue permanent nuisance and trespass claims

4

at trial. (ECF No. 261 at 44.)

5

However, the Court has clearly limited these claims to continuing and not

6

permanent torts. See Capogeannis v. The Superior Court of Santa Clara Cty., 12 Cal.

7

App. 4th 668, 679 (Cal. Ct. App. 1993) (“in a case in which the distinction between

8

permanent and continuing nuisance is close or doubtful the plaintiff will be permitted to

9

elect which theory to pursue”) (emphasis added). Therefore, diminution in value damages

10

are not available to Diamond X. Moreover, if Diamond X succeeds on the continuing

11

nuisance and trespass claims and is able to demonstrate that its negligence and

12

misappropriation of water rights claims also constitute continuing torts, then Diamond X

13

is limited to damages incurred during the relevant limitations period prior to

14

commencement of this action. See Skokomish Indian Tribe, 410 F.3d at 518; see also

15

People of the State of California v. Kinder Morgan Energy Partners, L.P. (Kinder II), 159

16

F. Supp. 3d 1182, 1196-97 (S.D. Cal. 2016) (finding that where a nuisance or trespass is

17

continuing, the injured party may seek damages for injuries occurring within the limitations

18

period).

19

Diamond X also contends that it may recover the costs of abatement and

20

restoration for all past contamination (ECF No. 261 at 44). However, the Court finds that

21

Diamond X’s recovery is limited to harm resulting from any contamination of the Property

22

caused by the purported releases of AMD from the Mine or any increase in already

23

existing contamination that occurred during the limitations period. The cases that

24

Diamond X cites to rely on a California statute, Cal. Civ. Code §3334(a), allowing for the

25

reasonable cost of restoration of a property to its original condition where there is wrongful

26

occupation of real property. While the Court has looked to California case law in

27

determining the application of the continuing tort doctrine to Diamond X’s Nevada-based

28

tort claims, the Court need not turn to a California statute as well to determine what form
17

1

of damages are permitted. The Court therefore limits damages to loss of use and

2

enjoyment of the Property for the limitations period as well as any increases in

3

contamination, if any, that were deposited on the Property during the limitations period.

4

Finally, Diamond X argues because its punitive damages claim is based on

5

ARCO’s conduct continuing to today, “including its ongoing failure to capture all sources

6

of AMD, its decision to allow AMD to flow unabated for more than half of the year, and its

7

continued failure to remediate downstream areas,” punitive damages are appropriate.

8

(ECF No. 261 at 46.) In Nevada, punitive damages are recoverable where there is “clear

9

and convincing evidence that the defendant has been guilty of oppression, fraud or

10

malice, express or implied.” NRS § 42.005(1). The purpose of punitive damages is to

11

punish the wrongdoer for his acts and to deter others from acting in a similar fashion. N.

12

Nevada Mobile Home Brokers v. Penrod, 610 P.2d 724, 727 (Nev. 1980). Because

13

Diamond X’s allegations concern ARCO’s conduct in treating and preventing the release

14

of AMD and because there is a genuine issue of material fact about whether ARCO’s

15

actions or omissions resulted in releases from the Mine, including during the limitations

16

period prior to commencement of this action, the Court declines to grant summary

17

judgment so as to bar punitive damages.

18

F.

Conclusion

19

ARCO’s SOL Motion is therefore granted in part and denied in part. It is granted

20

as to the strict liability claim, which is barred by the statute of limitations, but denied as to

21

Diamond X’s state law tort claims for nuisance, trespass, negligence, and

22

misappropriation of water rights.

23

VI.

TORT MOTION (ECF No. 230)

24

ARCO contends that: (1) Diamond X’s tort claims should be limited to injuries and

25

damages accruing after the date Diamond X acquired the Property; (2) Diamond X’s tort

26

claims should be limited to geographic locations where contamination attributable to the

27

Mine is found; and (3) the Court should find in favor of ARCO on Diamond X’s claims for

28

public nuisance, trespass, and strict liability. (ECF No. 230 at 9-20.) Because the Court
18

1

has limited damages to the limitations period prior to commencement of this action and

2

found that the statute of limitations bars Diamond X’s strict liability claim, the Court will

3

only address the three remaining issues raised in the Tort Motion.

4

A.

5

ARCO argues that Diamond X’s tort claims should be limited to geographic

6

locations where contamination attributable to the Leviathan Mind is found. (ECF No. 230

7

at 9-11.) The Court finds that disposing of this issue is premature as Diamond X must first

8

establish liability as to the contamination of certain portions of the Property and/or Bryant

9

Creek before any award of damages is granted.
Therefore, summary judgment is denied as to ARCO’s request to limit damages

10
11

Limiting Damages by Geography

based on geographic location.

12

B.

Public Nuisance Claim

13

ARCO argues that it is entitled to summary judgment on Diamond X’s claim for

14

public nuisance because the contamination in Bryant Creek and contamination of soils

15

on the Property do not affect a considerable number of persons. (ECF No. 230 at 13-14.)

16

Diamond X responds that the contamination of Bryant Creek need not affect a

17

considerable number of persons under Nevada law, relying on Nevada’s criminal statute

18

regarding public nuisance. (ECF No. 262 at 18.)

19

The Court disposes of this claim on a different basis than that raised by ARCO.

20

Specifically, in Nevada there is no private right of action for a public nuisance. Coughlin

21

v. Tailhook Ass’n, Inc., 818 F. Supp. 1366, 1371-72 (D. Nev. 1993), aff’d by Coughlin v.

22

Tailhook Ass’n, 112 F.3d 1052 (9th Cir. 1997).
Therefore, summary judgment is granted in favor of ARCO as to Diamond X’s

23
24

claim for public nuisance.

25

C.

26

ARCO contends that it is entitled to summary judgment on Diamond X’s trespass

27

///

28

Trespass Claim

///
19

1

claim because Diamond X permitted the entry of the contaminated water onto its land. 14

2

(ECF No. 230 at 14.)

3

In Nevada, “trespass is an action for injury to [a] plaintiff’s possession.” Rivers v.

4

Burbank, 13 Nev. 398, 408 (Nev. 1878). To sustain a trespass action, a property right

5

must be shown to have been invaded. Lied v. Clark Cty., 579 P.2d 171, 173-74 (Nev.

6

1978). Moreover, a plaintiff must show that the defendant “invaded the [plaintiff’s]

7

property” in a “direct and tangible” way. Palm Springs Transfer & Storage v. City of Reno,

8

No. 51215, 2009 WL 3189239, at *5 (Nev. 2009) (unpublished disposition). ARCO relies

9

primarily on California case law in support of its position that Diamond X’s diversion of

10

water by way of irrigation channels onto the Property amounted to consent to the

11

purported trespass and, therefore, the invasion of the Property was authorized. (ECF No.

12

230 at 14-15.) To the extent that ARCO relies on California law, its requirement that a

13

claim for trespass include an unauthorized or unconsented to entry amounts to a factual

14

dispute between the parties. For instance, while Diamond X consented to the entry of

15

water from Bryant Creek onto the Property, it is unclear if Diamond X consented to the

16

entry of AMD onto the Property.15 Moreover, to the extent Bryant Creek passes through

17

parcels of the Property in Nevada, it is unresolved whether AMD from the Mine was

18

deposited onto those parcels or whether it damaged them.

19

D.

Conclusion

20

ARCO’s Tort Motion is thus granted in part and denied in part. It is granted as to

21

Diamond X’s public nuisance claim but is denied as to Diamond X’s trespass claim and

22

as to limiting damages based on geographic location.

23

///

24
25
26
27
28

14ARCO

fails to account for the fact that part of the purported contamination
concerns parcels of Diamond X’s property that abut Bryant Creek.
15Diamond X contends that it ceased irrigating the Property with water from Bryant
Creek in 2007 because it suspected that water quality problems in Bryant Creek might be
impacting its use of the land (ECF No. 262 at 20), lending support to it being factually
disputed whether Diamond X consented to the entry of contaminants in the water onto
the River Ranch.
20

1

VII.

LIABILITY MOTION (ECF No. 231-1)

2

Diamond X moves for partial summary judgment as to ARCO’s liability under

3

Section 107 of CERCLA16 and ARCO’s liability as to Diamond X’s tort claims in the TAC.

4

The Court addresses only whether liability as to Diamond X’s private nuisance,17

5

negligence, negligence per se, and misappropriation of water rights claims should be

6

resolved on summary judgment because the remaining claims—trespass, strict liability,

7

and public nuisance—have been addressed. See discussion supra Sec. VI(C), V(D) and

8

VI(B). The Court finds that there is a genuine issue of material fact as to whether ARCO’s

9

acts or omissions caused injury to Diamond X. Therefore, summary judgment is denied

10

as to these claims.

11

A.

Causation

12

Nevada relies on the substantial factor test to determine legal or proximate

13

causation. See Holcomb v. Georgia Pac., 289 P.3d 188, 196 (Nev. 2012); RESTATEMENT

14

(SECOND) OF TORTS § 431 (AM. LAW INST. 1965). To establish proximate causation, “it

15

must appear that the injury was the natural and probable consequence of the negligence

16

or wrongful act, and that it ought to have been foreseen in the light of the attending

17

circumstances.” Yamaha Motor Co., U.S.A. v. Arnoult, 955 P.2d 661, 664 (Nev. 1998)

18

(citing Crosman v. S. Pac. Co., 173 P. 223, 228 (Nev. 1918) (internal quotation marks

19

omitted)). Moreover, “proximate causation is generally an issue of fact for the jury to

20

resolve.” Id. at 665 (citing Nehls v. Leonard, 630 P.2d 258, 260 (1981)).

21

Diamond X relies on an order from a recent California federal district court case,

22

Housing Auth. v. PCC Tech. Indus., Inc., No. 2:11-cv-01626-FMO-MRW (C.D. Cal. Oct.

23

///

24

///

25
26
27
28

portion of the Liability Motion is discussed in the section on ARCO’s
CERCLA I Motion, see discussion infra Sec. VIII.
17Diamond X argues in its motion that the Court should grant summary judgment
on the basis of nuisance per se. (ECF No. 231-1 at 32-33.) Because Diamond X relies on
California law in making this argument, the Court will not address it.
16This

21

1

13, 2015),18 to argue that the element of substantial factor causation should be found.

2

(ECF No. 231-1 at 27.) In that case, certain defendants placed slag on the soil at the site,

3

the slag contained arsenic and lead, and the arsenic and lead levels exceeded

4

commercial and residential levels, thereby preventing redevelopment at the site. (See

5

ECF No. 245-7 at 37-39.) Here, however, ARCO did not directly put AMD on the soil

6

where there are now elevated levels of arsenic; rather, Diamond X took water

7

contaminated with AMD from Bryant Creek and placed it on the Property itself.

8

Therefore, the Court finds that there is a genuine issue of material fact as to

9

whether ARCO’s conduct was the substantial factor in bringing about Diamond X’s harm,

10

precluding summary judgment in favor of Diamond X on Diamond X’s private nuisance

11

and negligence claims.19
Negligence Per Se20

12

B.

13

Under Nevada law, violation of a statute may constitute negligence per se but only

14

if (1) a plaintiff can show that a defendant has violated a duty imposed on him by a criminal

15

or regulatory statute; (2) the plaintiff is a member of the class of persons intended to be

16

protected by that law; and (3) the alleged harm is of the kind intended to be prevented by

17

that law. Weingartner v. Chase Home Fin., LLC, 702 F. Supp. 2d 1276, 1290 (D. Nev.

18

2010); see also Ashwood v. Clark Cty., 930 P.2d 740, 744 (Nev. 1997) (“A violation of

19

statute establishes the duty and breach elements of negligence [per se] only if the injured

20
21
22
23
24
25
26
27
28

18This

decision, which was issued on October 13, 2015, is not available through
standard legal databases; therefore, the Court utilizes the ECF filing of the order that was
filed in this case (ECF No. 245-7 at 27-44 (Exhibit II)) for citation purposes.
19Moreover, regarding the negligence and misappropriation of water rights claims,
neither of the parties address whether ARCO’s conduct during the relevant limitations
period caused AMD to be released from the Mine such that it led to contamination (or
further contamination) of the Property. Diamond X states that approximately 9 million
gallons of AMD currently remain untreated and that, for at least half of the year, ARCO
does not treat certain sources of AMD at the Mine. (ECF No. 285 at 15.) However,
Diamond X fails to identify how releases during the limitations period resulted in damage
to its land or impacted its water rights; instead, it focuses on how prior AMD releases
impacted its use of irrigation water from Bryant Creek. (See ECF No. 285 at 18.)
20To the extent Diamond X points to California statutes as the basis for a claim of
negligence per se (ECF No. 231-1 at 46), the Court declines to address its argument.
22

1

party belongs to the class of persons that the statute was intended to protect, and the

2

injury is of the type against which the statute was intended to protect.”).

3

Diamond X contends that ARCO is negligent per se because it has violated a Non-

4

Time Critical Removal Action order from EPA by failing to implement year-round

5

treatment of the Channel Underdrain and Delta Seep at the Mine. (ECF No. 231-1 at 36.)

6

However, this document is not an order; rather, it is an internal memo sent from a regional

7

site cleanup manager to the chief of the site cleanup branch at EPA. (ECF No. 249-4 at

8

3.) Assuming this memo amounts to a regulatory order for purposes of a negligence per

9

se claim, ARCO points out that EPA withdrew the requirement of year-round treatment in

10

2009. (ECF No. 246-3 at 20, 51 (in force as of January 21, 2009).) Because Diamond X’s

11

continuing negligence claim requires ARCO to have breached a duty during the relevant

12

limitations period, see discussion supra Sec. V(D), the Court finds an essential element

13

of the negligence per se claim has not been satisfied.

14

Therefore, summary judgment is denied as to the negligence claim.

15

C.

16

ARCO argues that Diamond X is precluded from summary judgment on this claim

17

because it has not established its ownership of rights to appropriate water from Bryant

18

Creek. (ECF No. 258 at 45-46.) The Court agrees and finds there is a genuine issue of

19

material fact as to whether Diamond X owns the water rights initially decreed to W. Brooks

20

Park in the Alpine Decree. Specifically, Diamond X has not produced evidence that W.

21

Brooks Park conveyed its rights to Diamond X. To the extent that Diamond X relies on a

22

declaration of David Park stating that Diamond X is invoiced by the Water Master for

23

water rights assessments for these water rights (ECF No. 235 at 2), this requires the

24

Court to infer ownership. However, this issue is more properly before the trier of fact and

25

not the Court for determination.

26

///

27

///

28

///

Wrongful Appropriation of Water Rights

23

1

The Court declines to address Diamond X’s additional arguments concerning the

2

proper type of damages for its misappropriation of water rights claim,21 whether ARCO

3

has misappropriated the water by making it unsuitable for domestic purposes, and the

4

appropriate standard to determine if ARCO has interfered with domestic water use. (See

5

ECF No. 231-1 at 41-44.) Because the Court determined that there is a genuine factual

6

dispute concerning whether misappropriation of water rights is a continuing tort, see

7

discussion supra Sec. V(D), it would be premature for the Court to determine how to

8

assess damages or the appropriate standard for doing so. Therefore, the Court denies

9

summary judgment as to Diamond X’s claim for wrongful appropriation of water rights.

10

D.

Conclusion

11

Diamond X’s Liability Motion is thus denied. The Court finds there is a genuine

12

issue of material fact as to Diamond X’s remaining state law tort claims, thereby

13

precluding summary judgment.

14

VIII.

CERCLA I MOTION (ECF No. 229)

15

Both Diamond X and ARCO move for summary judgment on Diamond X’s seventh

16

and eighth claims asserted under CERCLA. (ECF No. 231-1 at 17-24; ECF No. 248 at

17

10.) As to Diamond X’s seventh claim, the Court finds that there is a genuine issue of

18

material fact as to whether investigatory costs incurred by Diamond X before the River

19

Ranch’s inclusion in the EPA-approved study area in 2012 are recoverable but finds that

20

costs incurred by Diamond X after the River Ranch became part of the EPA-approved

21

study area are duplicative and therefore not recoverable. As to Diamond X’s eighth claim,

22

the Court declines to resolve this issue on summary judgment because it is unclear at this

23

time if the Property will become part of an EPA-ordered remedial cleanup carried out by

24

ARCO.

25

///

26
27
28

21The

Court notes, however, that if Diamond X successfully demonstrates that
ARCO’s actions or omissions resulted in misappropriation during the relevant limitations
period, Diamond X is limited to damages incurred during that period up until
commencement of this action.
24

1

A.

2

CERCLA, 42 U.S.C. § 9601 et seq., is a statutory scheme giving the federal

3

government broad authority to require responsible parties to clean up contaminated soil

4

and groundwater. See Key Tronic Corp. v. United States, 511 U.S. 809, 814 (1994).

5

“CERCLA’s goal . . . is not simply to encourage private response, but rather ‘to make the

6

party seeking response costs choose a cost-effective course of action to protect public

7

health and the environment’ and to achieve ‘a CERCLA-quality cleanup.” City of Colton

8

v. Am. Promotional Events, Inc.-W., 614 F.3d 998, 1008 (9th Cir. 2010) (citing Carson

9

Harbor Vill. v. Cty. of Los Angeles (Carson Harbor II), 433 F.3d 1260, 1265 (9th Cir.

10

Statutory Framework

2006)).

11

“CERCLA provides two mechanisms for private parties to recover their

12

environmental cleanup expenses from other parties.” Whittaker Corp. v. United States

13

(Whittaker II), 825 F.3d 1002, 1006 (9th Cir. 2016). First, Section 107 allows for “cost

14

recovery” actions against PRPs to recover costs, including any “necessary costs of

15

response incurred by any other person consistent with the national contingency plan.” 42

16

U.S.C. §9607(a)(4)(B). Second, “113(f)(1) authorizes a contribution action to PRPs with

17

common liability stemming from an action instituted under . . . § 107(a).” United States v.

18

Atl. Research Corp., 551 U.S. 128, 129 (2007).

19

In order for Diamond X to prevail on its Section 107 claim, it must establish: “(1)

20

the site on which the hazardous substances are contained is a facility under CERCLA’s

21

definition of that term, 42 U.S.C. § 9601(9); (2) a release or threatened release of any

22

hazardous substance from the facility has occurred, 42 U.S.C. § 9607(a)(4); (3) such

23

release or threatened release has caused Diamond X to incur response costs that were

24

necessary and consistent with the national contingency plan (“NCP"), 42 U.S.C. §

25

9607(a)(4) & (A)(4)(B); and (4) ARCO is within one of four classes of persons subject to

26

the liability provisions of Section 107(a).” City of Colton, 614 F.3d at 1002-3 (internal

27

quotation marks and citation omitted). Moreover, where the response costs are incurred

28

at a site distinct from the facility at which the original disposal occurred—such as here—
25

1

the moving part must: (a) identify a contaminant at its site; (b) identify the same or a

2

chemically similar contaminant at the original facility; and (c) provide evidence of a

3

plausible migration pathway by which the contaminant may have travelled from the

4

original facility to the site. Castaic Lake Water Agency v. Whittaker Corp. (Whittaker I),

5

272 F. Supp. 2d 1053, 1066 (C.D. Cal. 2003).

6

B.

Response Costs

7

Diamond X is seeking all past investigatory costs and non-litigation costs under

8

Section 107. (ECF No. 296.) At issue in both Diamond X’s Liability Motion and ARCO’s

9

CERCLA I Motion is whether the costs incurred by Diamond X are recoverable. (See ECF

10

No. 258 at 15-19; see also ECF No. 229 at 10-18.) While ARCO contends these costs

11

are neither necessary nor consistent with the NCP, the Court focuses exclusively on

12

whether these costs are duplicative and therefore not necessary.

13

Response costs are considered “necessary” when “an actual and real threat to

14

human health or the environment exist[s].” Carson Harbor Vill., Ltd. v. Unocal Corp.

15

(Carson Harbor I), 270 F.3d 863, 871 (9th Cir. 2001) (en banc). “[C]ourts will deny

16

recovery where the costs incurred were duplicative of other costs, wasteful, or otherwise

17

unnecessary to address the hazardous substances at issue.” Waste Mgmt. of Alameda

18

Cty., Inc. v. East Bay Reg’l Park Dist., 135 F. Supp. 2d 1071, 1099 (N.D. Cal. 2001).

19

“Generally, investigative costs incurred by a private party after EPA has initiated a

20

remedial investigation unless authorized by EPA are not considered necessary because

21

they are ‘duplicative’ of the work performed by EPA.” United States v. Iron Mountain

22

Mines, Inc., 987 F. Supp. 1263, 1272 (E.D. Cal. 1997) (internal quotation marks and

23

citation omitted).

24

In its response to ARCO’s CERCLA I Motion, Diamond X points out that it

25

conducted studies of the River Ranch beginning in 2005 to determine the environmental

26

condition of the Property. (ECF No. 261 at 9-10.) However, it was not until August of 2012,

27

when Diamond X hired a consulting firm, McGinley and Associates (“MGA”), to perform

28

targeted soil sampling of the Property that Diamond X learned that concentrations of
26

1

arsenic were elevated so as to preclude its development plans for the Property and

2

require extensive remediation. (Id. at 10.) Diamond X then reported the discovery of

3

contamination levels to NDEP. (Id.) Diamond X contends that starting in 2015 it began to

4

investigate under NDEP oversight, that EPA was informed of Diamond X’s independent

5

response action, and that EPA approved Diamond X proceeding with this independent

6

action. (Id.)

7

The initial studies that Diamond X undertook after it acquired the Property may

8

meet the definition of investigatory costs and thus may be recoverable under CERCLA.22

9

See Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 892 (9th Cir. 1986) (expenses

10

incurred by present owner in testing site could be recovered under CERCLA). However,

11

in February of 2012 ARCO submitted an Off-Property Focused Remedial Investigation

12

Work Plan to EPA, focusing on determining health risk to persons, and explicitly included

13

the River Ranch in the off-site study area. (ECF No. 227-3.) EPA did not authorize

14

Diamond X to perform its own separate investigation prior to Diamond X doing so in

15

August of 2012; rather, Diamond X performed the MGA study even though in November

16

of 2011 EPA informed them that the areas of the Property that had been irrigated with

17

Bryant Creek water would be included in the study area (ECF No. 264 at ¶ 5). See

18

Louisiana-Pac. Corp. v. Beazer Materials & Servs., Inc., 811 F. Supp. 1421, 1425 (E.D.

19

Cal. 1993) (finding that to allow a party to recover investigation costs incurred after EPA

20

explicitly informed them of its intent to conduct an investigation but before that

21

investigation began would impermissibly allow that party to double the response costs).

22

While Diamond X notified EPA of its actions after the MGA study, there is no evidence

23

that EPA approved the MGA study as part of the remedial investigation into supplemental

24

areas contaminated by the Mine or any subsequent actions taken by Diamond X. (See

25

ECF No. 227-17 at 6-10; see also ECF No. 254-1 at 21-23, 28-30.) Moreover, EPA has

26

explicitly stated that it has not approved the response actions taken by Diamond X or its

27
28

22The

Court does not address whether claims for some of these costs are barred
by the statute of limitations as the issue was not raised in the briefs.
27

1

proposed remedial action. (ECF No. 277-6 at 2.) The Court therefore finds that any

2

investigatory costs incurred by Diamond X after EPA approved the Property as part of

3

ARCO’s remedial investigation study area are duplicative and thus not recoverable.

4

To the extent that Diamond X contends there are triable issues of fact as to whether

5

the costs it incurred are duplicative, the Court disagrees as to those costs incurred past

6

February 2012. Diamond X relies on United States v. Newmont USA Ltd., 504 F. Supp.

7

2d 1077 (E. D. Wash. 2007). (ECF No. 260 at 13.) However, that case involved an

8

instance where the United States government sought to recover response costs that were

9

potentially duplicative of studies performed by another party before EPA added the site

10

to the National Priorities List and that the party had performed through an agreement with

11

the Bureau of Land Management. See United States v. Newmont USA Ltd., 504 F. Supp.

12

2d at 1080, 1085. Here, by contrast, Diamond X performed many of its studies while the

13

EPA-approved remedial investigation of the Property was ongoing.

14

Therefore, the Court finds that there are genuine issues of material fact as to

15

whether Diamond X may recover costs incurred prior to February 2012 but that costs

16

incurred after that time are not recoverable.

17

C.

Future Costs

18

Section 113(g)(2) provides that in any initial cost-recovery action under Section

19

107, “the court shall enter a declaratory judgment on liability for response costs or

20

damages that will be binding on any subsequent action or actions to recover further

21

response costs or damages.” 42 U.S.C. § 9613(g)(2). After establishing liability under

22

Section 107, a plaintiff can “obtain reimbursement for initial outlays, as well as a

23

declaration that the responsible party will have continuing liability for the cost of finishing

24

the job.” In re Dant & Russell v. Burlington N. Railroad Co., 951 F.2d 246, 249-50 (9th

25

Cir. 1991); see also Whittaker I, 272 F. Supp. 2d at 1059 (finding that a court may grant

26

declaratory relief for future costs once a plaintiff has incurred at least some recoverable

27

response costs).

28

///
28

1

Diamond X’s eighth claim for relief seeks future response costs of between

2

approximately $70 and $128 million. (ECF No. 175 at ¶¶ 91-94.) ARCO seeks summary

3

judgment, arguing that because Diamond X cannot show its previously incurred response

4

costs were necessary and consistent with the NCP, Diamond X cannot establish that it

5

has a right to a declaratory judgment under § 113(g)(2) for future response costs. (ECF

6

No. 229 at 19.)

7

The Court denies summary judgment as to future response costs for two reasons.

8

First, because the Court finds a genuine issue of material fact exists to preclude Diamond

9

X’s recovery of costs incurred before February 2012, the same finding would necessarily

10

preclude summary judgment on future response costs. Diamond X may very well receive

11

recovery of costs incurred before 2012, which may affect Diamond X’s entitlement to

12

claim future response costs, but in light of the fact that ARCO has not recommended any

13

remedial action at the Property nor has a consent decree been entered into by ARCO to

14

clean up the Property (see ECF No. 246 at 15 (“If, based on these investigations, EPA

15

determines that CERCLA remedial action is required on the Property, it is reasonably

16

likely that EPA will require [ARCO] to perform the remedial action”) (emphasis added);

17

see also ECF No. 227-7 at 14-15 (identifying irrigated portions of the River Ranch as part

18

of the supplemental study area)), it is unclear to the Court whether Diamond X is

19

precluded from recovering future response costs. Therefore, the Court denies summary

20

judgment as to this claim.

21

D.

Conclusion

22

ARCO’s CERCLA I Motion is therefore granted in part and denied in part. It is

23

granted insofar as Diamond X is precluded from recovering costs it incurred after

24

February 2012 but it is denied insofar as there is a genuine issue of material fact as to

25

whether Diamond X may recover costs incurred before February 2012. Therefore, the

26

motion is also denied as to Diamond X’s eighth claim as it is unclear whether Diamond X

27

may recover future costs as this point in time.

28

///
29

1

IX.

CERCLA II MOTION (ECF No. 248)

2

ARCO moves for partial summary judgment as to Diamond X’s and Park

3

Livestock’s CERCLA liability on the basis that both are covered persons under Section

4

107(a). (ECF No. 248 at 19.) The Court agrees.

5

A.

Background

6

In its Counterclaim/Third-Party Complaint, ARCO alleges that Diamond X and Park

7

Livestock’s operation of the irrigation system headgates allowed water from Bryant Creek

8

to flow onto the Property, which were then transported across the property via man-made

9

irrigation ditches and deposited onto certain areas of the Property, allowing hazardous

10

substances into the irrigation system and the soils on the Property. (ECF No. 179 at 21.)

11

ARCO also alleges that Diamond X and Park Livestock removed sediment containing

12

hazardous substances from the irrigation ditches, which Diamond X and Park Livestock

13

then deposited directly onto the soil and vegetation down gradient from the ditches both

14

on the Property and on other properties. (Id. at 22.) This resulted in the release or

15

threatened release of hazardous substances on the Property and other properties

16

surrounding it. (Id.)

17

In their joint response, Diamond X and Park Livestock contend that Park Livestock

18

is not an operator, both Diamond X23 and Park Livestock are entitled to the third party

19

defense, and Diamond X is entitled to the contiguous property owner defense.

20

B.

Statutory Framework

21

In order to recover under either Section 107 or 113 of CERCLA, ARCO must

22

establish that Diamond X and Park Livestock are each within one of the four classes of

23

persons subject to the liability provisions of Section 107(a). See City of Colton, 614 F.3d

24

at 1002-3 (§ 107(a) claim); see also AmeriPride Servs. Inc. v. Texas E. Overseas Inc.,

25

782 F.3d 474, 480 (9th Cir. 2015) (§ 113(f)(1) claim).

26

///

27
28

23By

asserting defenses, Diamond X concedes that it is a PRP.
30

1

C.

2

The Court finds that Park Livestock falls within the meaning of “former operator” of

3

Operator Liability of Park Livestock

a facility from which there is a release or threatened release of a hazardous substance.

4

Former operators include “any person who at the time of disposal of any hazardous

5

substance owned or operated any facility at which such hazardous substances were

6

disposed of[.]” 42 U.S.C. § 9607(a)(2). The Supreme Court clarified this definition by

7

finding that “an operator must manage, direct, or conduct operations specifically related

8

to pollution, that is, operations having to do with the leakage or disposal of hazardous

9

waste, or decisions about compliance with environmental regulations.” United States v.

10

Bestfoods, 524 U.S. 51, 66-67 (1998). The Court found that CERCLA “must be read to

11

contemplate ‘operation’ as including the exercise of direction over the facility’s activities.”

12

Id. at 71. The Supreme Court’s clarification of the meaning of “former operator” followed

13

the Ninth Circuit’s earlier definition of an operator as any party with the “authority to control

14

the cause of the contamination at the time the hazardous substances were released into

15

the environment.” Kaiser Aluminum & Chem. Corp. v. Catellus Dev. Corp., 976 F.2d 1338,

16

1341 (9th Cir. 1992). The Ninth Circuit’s “operator” definition has been held to be

17

consistent with Bestfoods’ definition. See City of Los Angeles v. San Pedro Boat Works,

18

635 F.3d 440, 451-52 (9th Cir. 2011).

19

Park Livestock contends that its operations were exclusively related to cattle

20

grazing and that it was the owner of the Property, W. Brooks Park, who determined how

21

and when to irrigate; therefore, at the very least “there are triable issues of fact concerning

22

whether Park Livestock was ever responsible for or in control of operations specifically

23

related to pollution.” (ECF No. 260 at 21-23.) The Court resolved the first contention in a

24

previous order. There, the Court determined that placing and depositing water containing

25

hazardous substances onto the Property, removing sediment containing hazardous

26

materials from the irrigation ditches, and placing or discarding these materials on the

27

Property were specifically related to pollution and constitute a disposal under CERCLA

28

for purposes of operator liability. (See ECF No. 224 at 14-21.)
31

1

As for Park Livestock’s contention that it lacked control over the operation of the

2

irrigation system, the undisputed evidence does not help it. Park Livestock admitted in its

3

Answer to ARCO’s Third-Party Complaint that it actively operated the irrigation system,

4

determining if, when, where, and how much water from Bryant Creek was deposited on

5

the Property. (ECF No. 226 at ¶¶ 10, 12-13.) Park Livestock also admitted in its Answer

6

that it removed sediment from the irrigation system and placed it elsewhere on the

7

Property, stating in its Answer that “as a matter of periodic maintenance to improve water

8

flow, Park Livestock infrequently, but at times, removed sediment from the ditches and

9

placed it on the downgradient side of the irrigation ditch” and that, at times, “it used a

10

backhoe for maintenance of an irrigation ditch.” (ECF No. 226 at ¶¶ 15-16.)

11

In addition, there is deposition testimony of David and W. Bruce Park that a Park

12

Livestock employee operated the irrigation system for “40-some-odd years,” and that the

13

employee “didn’t really need any instructions” on how to operate the system, as it required

14

only one person to perform the job, which this particular employee did every day.24 (ECF

15

No. 227-38 at 7-8; ECF No. 227-57 at 3.) To the extent that this employee was directed

16

by W. Brooks Park, Brooks was not only the owner of the Property but also a part owner

17

in Park Livestock at some point in time. (See ECF No. 227-38 at 8; see ECF No. 226 at

18

¶ 6 (“Park Livestock admits that its shareholders historically included members of the

19

Park family”).) The fact that a Park Livestock employee actually operated the system is

20

what is relevant; Park Livestock offers no legal authority to support its suggestion that

21

because this employee was instructed at times by someone once affiliated with the

22

company, the company is therefore not responsible for its employee’s actions where

23

those actions were his responsibility as an employee and occurred within the course of

24

his employment.25 Moreover, David Park admitted in his deposition that he had, as a part

25
26
27
28

24A

second employee took over the position of operating the irrigation system
before the company ceased irrigating the Property. (ECF No. 227-38 at 8.)
25The case law Park Livestock cites would be helpful if ARCO was asking that the
particular employee be found liable as a PRP; otherwise, these cases are not on point as
to this particular issue.
32

1

owner of Park Livestock, opened the irrigation headgates at times and decided when to

2

irrigate. (See ECF No. 227-38 at 7-8.)

3

In sum, given Park Livestock’s admissions in its Answer and its representative’s

4

deposition testimony, there is no dispute that Park Livestock controlled the irrigation

5

system on the Property.

6

D.

Third Party Defense

7

Neither Diamond X nor Park Livestock are entitled to the third party defense

8

because the evidence is undisputed that the release of AMD from the Leviathan Mine

9

was not the sole cause of the pollution on the Property.

10

The third party defense, also known as the innocent landowner defense, requires

11

a showing (1) that the release or threat of release of hazardous substances was caused

12

solely by the acts of a third party, (2) that the third party was not an employee or agent of

13

Diamond X or Park Livestock, and (3) that Diamond X and Park Livestock exercised due

14

care with respect to the hazardous substances and took precautions against foreseeable

15

third-party acts or omissions. Whittaker I, 272 F. Supp. 2d at 1079-80; 42 U.S.C. §

16

9607(b)(3). This defense is construed narrowly to further CERCLA’s broad remedial

17

purposes. Carson Harbor I, 270 F.3d at 883; Lincoln Props., Ltd. v. Higgins, 823 F. Supp.

18

1528, 1539 (E.D. Cal. 1992). In order to defeat summary judgment, Diamond X and Park

19

Livestock “must come forward with evidence sufficient to create a genuine issue of

20

material fact” as to this defense. Whittaker I., 272 F. Supp. 2d at 1080 (citing Dig. Control

21

Inc. v. McLaughlin Mfg. Co., Inc., 248 F. Supp. 2d 1015, 1017 (W.D. Wash. 2003)).

22

Diamond X and Park Livestock contend that there are triable issues of fact as to

23

whether ARCO was the sole cause of the release of hazardous substances because

24

neither Diamond X nor Park Livestock, or any member of the Park family, discovered that

25

irrigated water had caused a release of contaminants on the property until 2012. (See

26

ECF No. 261 at 25.) Therefore, Diamond X and Park Livestock reason, the parties were

27

not the proximate cause of the release of hazardous substances because the release

28

was not a foreseeable consequence of their actions. (See id. at 23.) They reach this
33

1

conclusion in part by relying on Lincoln Properties Ltd v. Higgins, 823 F. Supp. 1528 (E.D.

2

Cal. 1992). In that case, the district court held that “caused solely by” incorporates the

3

concept of proximate cause such that “[i]f the [party requesting use of the defense]’s

4

release was not foreseeable” then the third party defense may be available. 823 F. Supp.

5

at 1542. However, the court also stated that in order to meet the first element of the third

6

party defense, the party’s release must not only be unforeseeable but its conduct must

7

be “indirect and insubstantial” in the chain of events leading to the release. Id. at 1542-

8

43. The court found that the defense was available based on the fact that there was no

9

evidence of conduct by the party that contributed to the releases, which were minimal.

10

Id.; see also Whittaker I, 272 F. Supp. 2d at 1081. Here, the extent of the soil

11

contamination on the Property26 would not have occurred but for the actions of Diamond

12

X and Park Livestock in opening the irrigation system’s headgates and displacing

13

sediment from the irrigation ditches onto other parts of the Property. See discussion supra

14

Sec. IX(C).

15

Moreover, the Court disagrees with the parties that their activities were indirect and

16

insubstantial. (ECF No. 261 at 26.) Park Livestock leased the Property beginning in 1974,

17

and Diamond X continued to irrigate27 the Property with contaminated water from Bryant

18

Creek for four years after acquiring the land, not an insignificant amount of time given that

19

the company has only existed for fourteen years. Park Livestock also admitted to moving

20

sediment from the irrigation ditches onto other parts of the Property. In addition, in 2005

21
22
23
24
25
26
27
28

26In

arguing for this defense, Diamond X and Park Livestock make no claims about
contamination above EPA levels in the parcels abutting Bryant Creek.
27
As Diamond X stated in its TAC, the Property has been “historically owned and
ranched by the same family for more than 100 years,” and those portions of the property
that were ranched were also “historically flood irrigated” with water diverted from Bryant
Creek through an irrigation ditch “originally dug in the late 1800s or early 1900s.” (ECF
No. 175 at 7.) The fact that Diamond X was created in 2003 and only irrigated the land
with water from Bryant Creek for four years does not make the release of contaminants
insubstantial, as it notes that the company inherited the property from W. Brooks Park
Trust upon the death of W. Brooks Park, who is the grandfather of David Park and W.
Bruce Park. (ECF No. 262 at 9; ECF No. 235 at ¶ 4.) Both David and W. Bruce indirectly
own Diamond X (through David’s LLC and W. Bruce’s trust) in addition to owning Park
Livestock.
34

1

Diamond X was on notice that contamination in Bryant Creek had interfered with use of

2

its water rights; therefore, it was not unforeseeable that continued use of the water would

3

contaminate the Property.
Therefore, the third party defense is not available to Diamond X and Park

4
5

Livestock.

6

E.

Contiguous Property Owner Defense

7

Diamond X also contends that it qualifies for the contiguous property owner

8

defense under Section 107(q), 42 U.S.C. § 9607(q). (ECF No. 260 at 28-29.) The Court

9

disagrees. Because this defense also relies on Diamond X not causing or contributing to

10

the release of the hazardous substances onto the Property, § 9607(q)(1)(A)(i), this

11

defense is also unavailable. See discussion supra Sec. IX(D).

12

F.

Conclusion

13

Therefore, ARCO’s CERCLA II Motion is granted. Both Diamond X and Park

14

Livestock are covered persons for purposes of liability under Section 107. Furthermore,

15

the third party and contiguous property owner defenses are not available to Diamond X

16

or Park Livestock.

17

X.

CONCLUSION

18

The Court notes that the parties made several arguments and cited to several

19

cases not discussed above. The Court has reviewed these arguments and cases and

20

determines that they do not warrant discussion as they do not affect the outcome of the

21

parties’ motions.

22

It is therefore ordered that ARCO’s Motion for Summary Judgment on Diamond

23

X’s Tort Claims as Barred by the Statute of Limitations (ECF No. 228) is granted in part

24

and denied in part.

25

It is further ordered that ARCO’s Motion for Summary Judgment on Diamond X’s

26

Seventh and Eighth Claims under CERCLA (ECF No. 229) is granted in part and denied

27

in part.

28

///
35

1
2

It is further ordered that ARCO’s Motion for Summary Judgment to Limit or Dismiss
Diamond X’s Tort Claims (ECF No. 230) is granted in part and denied in part.

3

It is further ordered that Diamond X’s Motion for Partial Summary Judgment

4

Concerning ARCO’s Liability as to CERCLA and Certain Common Law Claims (ECF No.

5

231) is denied.

6
7
8

It is further ordered that ARCO’s Motion for Partial Summary Judgment on ARCO’s
CERCLA Claims against Diamond X and Park Livestock (ECF No. 248) is granted.
DATED THIS 29th day of September 2017

9
10
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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