Confederated Tribes and Bands of the Yakama Nation v. United States of America et al

Filing 41

ORDER: The Court ADOPTS as modified Magistrate Judge Papaks Findings and Recommendation 33 as follows: 1. The Court DENIES Defendants Motion 27 for Summary Judgment. 2. The Court GRANTS Plaintiffs Motion 21 for Summary Judgment as to i ts oversight and funding costs and its claim for declaratory judgment as to Defendants liability for future response costs. 3. The Court DENIES Plaintiffs Motion 21 for Summary Judgment as to Plaintiffs costs associated with the adoption of the r egulation prohibiting fishing in the vicinity of Bradford Island. The only issues remaining for trial are (1) the amount of Plaintiffs response costs attributable to its oversight and funding activities and (2) whether the costs Plaintiff incurred to adopt the regulation prohibiting fishing in the vicinity of Bradford Island were caused by the release of hazardous substances from Bradford Island. Signed on 02/01/2016 by Judge Anna J. Brown. See attached 7 page Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

CONFEDERATED TRIBES AND BANDS
OF THE YAKAMA NATION,

3:14-CV-01963-PK
ORDER

Plaintiff,
v.
UNITED STATES OF AMERICA;
DEPARTMENT OF THE ARMY; and
ARMY CORPS OF ENGINEERS,
Defendants.

BROWN, Judge.
Magistrate Judge Paul Papak issued Findings and
Recommendation (#33) on December 18, 2015, in which he recommends
the Court grant in part and deny in part Plaintiff Confederated
Tribes and Bands of the Yakima Nation’s Motion (#21) for Summary
Judgment and deny Defendants’ Motion (#27) for Summary Judgment.

1 - ORDER

Plaintiff and Defendants filed timely Objections to the Findings
and Recommendation.

The matter is now before this Court pursuant

to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure
72(b).
When any party objects to any portion of the Magistrate
Judge's Findings and Recommendation, the district court must make
a de novo determination of that portion of the Magistrate Judge's
report.

28 U.S.C. § 636(b)(1).

See also Dawson v. Marshall, 561

F.3d 930, 932 (9th Cir. 2009); United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003)(en banc).
I.

Defendants’ Objections
In their Objections Defendants reiterate the arguments

contained in their Motion for Summary Judgment, their Reply in
support of their Motion for Summary Judgment, and in their
assertions at oral argument.

This Court has carefully considered

Defendants’ Objections and concludes they do not provide a basis
to modify the Findings and Recommendation.

The Court also has

reviewed the pertinent portions of the record de novo and does
not find any error in the Magistrate Judge's Findings and
Recommendation.
II.

Plaintiff’s Objections
Plaintiff objects to the Magistrate Judge’s recommendation

to deny Plaintiff’s Motion for Summary Judgment as to its claim
for declaratory judgment on the grounds that issuing a
2 - ORDER

declaratory judgment is not discretionary and uncertainty
surrounding future response costs does not preclude declaratory
judgment.
In its Complaint Plaintiff asserts two claims:

(1) a cost-

recovery claim under the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9607(a),
and (2) a claim for declaratory judgment establishing Defendants'
liability for Plaintiff’s future CERCLA response costs.
The Magistrate Judge found Plaintiff’s oversight costs and
funding costs are “response costs” caused by the release or
threatened release of a hazardous substance and “not inconsistent
with the National Contingency Plan (NCP).

Accordingly, the

Magistrate Judge recommended granting Plaintiff’s Motion for
Summary Judgment as to those costs.

The Magistrate Judge,

however, found a genuine dispute of material fact exists as to
whether Plaintiff’s costs associated with the adoption of the
regulation prohibiting fishing in the vicinity of Bradford Island
are recoverable response costs under CERCLA.

The Magistrate

Judge, therefore, recommended denying Plaintiff’s Motion for
Summary Judgment as to those costs.

Finally, the Magistrate

Judge reiterated CERCLA imposes liability on Defendants for
Plaintiff’s response costs only when those costs are caused by
Defendants' release or threatened release of a hazardous
substance and when Plaintiff’s response activities are “not

3 - ORDER

inconsistent with” the NCP.

The Magistrate Judge found:

Because the court cannot predict to a legal
certainty the exact nature or cause of the Tribe's
future response activities, it cannot adjudicate
Defendants liable for all of the Tribe's future
response costs as a matter of law. That said,
depending on the facts surrounding Yakama Nation's
future response costs, preclusion principles may
significantly limit Defendants' ability to contest
their liability for those costs.
Findings and Recommendation at 14.

Plaintiff objects only to

this final finding and the recommendation that this Court deny
Plaintiff’s Motion for Summary Judgment as to Plaintiff’s claim
for declaratory judgment.
Plaintiff notes CERCLA provides “the court shall enter a
declaratory judgment on liability for response costs or damages
that will be binding on any subsequent action or actions to
recover further response costs or damages.”
§ 9613(g)(2)(emphasis added).

42 U.S.C.

Accordingly, a successful CERCLA

plaintiff is not required to re-try a polluter’s liability when
the plaintiff incurs response costs in the future.

The Ninth

Circuit has held when “a plaintiff successfully establishes
liability for the response costs sought in the initial
cost-recovery action, it is entitled to a declaratory judgment on
present liability that will be binding on future cost-recovery
actions.”

City of Colton v. Am. Promotional Events, Inc.-West,

614 F.3d 998, 1007 (9th Cir. 2010)(emphasis added).
Circuit has explained:

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As the Ninth

These [response-cost] sections [of CERCLA]
envision that, before suing, CERCLA plaintiffs
will spend some money responding to an
environmental hazard. They can then go to court
and obtain reimbursement for their initial
outlays, as well as a declaration that the
responsible party will have continuing liability
for the cost of finishing the job.
In re Dant & Russell, Inc., 951 F.2d 246, 249-50 (9th Cir. 1991).
CERCLA § 113(g)(2), therefore, “mandates collateral estoppel
effect to a liability determination.”

United States v. Hobson,

No. CV07-282-S-EJL, 2010 WL 255971, at *9-10 (D. Idaho Jan. 15,
2010)(citation omitted).
In its Objections Plaintiff makes clear it is only seeking a
declaratory judgment as to Defendants’ liability, which is
permitted by CERCLA, and not seeking a determination regarding
the “nature or cause of [its] future response activities” as the
Magistrate Judge suggests.

See, e.g., United Alloys, Inc. v.

Baker, 797 F. Supp. 2d 974, 1003 (C.D. Cal. 2011)(“CERCLA
expressly provides for declaratory actions for determining
liability as to future response costs.”); Voggenthaler v.
Maryland Square LLC, 724 F.3d 1050, 1064-65 (9th Cir. 2013).
Plaintiff concedes even if the Court enters a declaratory
judgment of liability, Plaintiff “will still be required, in any
future action, to demonstrate that the actions for which it is
seeking its costs are response actions under CERCLA.”

The Court

agrees.
Accordingly, the Court declines to adopt the Magistrate
5 - ORDER

Judge’s recommendation to deny Plaintiff’s Motion for Summary
Judgment as to Plaintiff’s request for declaratory judgment.

CONCLUSION
The Court ADOPTS as modified Magistrate Judge Papak’s
Findings and Recommendation (#33) as follows:
1.

The Court DENIES Defendant’s Motion (#27) for Summary
Judgment.

2.

The Court GRANTS Plaintiff’s Motion (#21) for Summary
Judgment as to its oversight and funding costs and its
claim for declaratory judgment as to Defendants’
liability for future response costs.

3.

The Court DENIES Plaintiff’s Motion (#21) for Summary
Judgment as to Plaintiff’s costs associated with the
adoption of the regulation prohibiting fishing in the
vicinity of Bradford Island.

The only issues remaining for trial are (1) the amount of
Plaintiff’s response costs attributable to its oversight and
funding activities and (2) whether the costs Plaintiff incurred
to adopt the regulation prohibiting fishing in the vicinity of
Bradford Island were caused by the release of hazardous

6 - ORDER

substances from Bradford Island.
IT IS SO ORDERED.
DATED this 1st day of February, 2016.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

7 - ORDER