Confederated Tribes and Bands of the Yakama Nation v. Air Liquide America Corporation et al

Filing 356

OPINION & ORDER: Adopting the Magistrate's Findings and Recommendation 321 . Accordingly I Deny the following motions: Motion to Dismiss Second Amended Complaint for Failure to Join Parties 254 ; Joint Motion to Dismiss Plaintiff& #039;s Claims for Natural Resource Damages as Untimely 255 ; Joint Motion to Dismiss Plaintiff's Claims for Natural Resource Damages as Untimely 257 ; Motion to Dismiss Plaintiff's Second Amended Complaint 258 ; Motion to Dismiss Secon d Amended Complaint 259 ; Motion to Dismiss 261 ; and Motion to Dismiss Plaintiff's Natural Resources Damages Claim 263 . I Grant Motion for Stay 197 , and Motion to Dismiss Portion of Claim 2 and Stay Remaining Claims 253 . I enter a s tay of dispositive motions, allow Plaintiff to file a third amended complaint, allow Defendants to file motions to dismiss the amended complaint, and stay discovery save for the preservation of evidence. Signed on 8/8/19 by Judge Michael W. Mosman. (gm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

CONFEDERATED TRIBES AND BANDS
OF THE YAKAMA NATION,
Plaintiff,

No. 3:17-cv-00164-JR

V.

OPINION AND ORDER
AIRGAS USA, LLC et al.,
Defendants.

MOSMAN,J.,
On January 22, 2019, Magistrate Judge Paul Papale issued his Findings and
Recommendation (F&R) [321], recommending that I DENY the following motions: Motion to
Dismiss Second Amended Complaint for Failure to Join Parties [254]; Joint Motion to Dismiss
Plaintiffs Claims for Natural Resource Damages as Untimely [255]; Joint Motion to Dismiss
Plaintiffs Claims for Natural Resource Damages as Untimely [257]; Motion to Dismiss
Plaintiffs Second Amended Complaint [258]; Motion to Dismiss Second Amended Complaint
[259]; Motion to Dismiss for Failure to Join Necessary Parties [261]; and Joint Motion to
Dismiss Plaintiffs Natural Resources Damages Claim [263]. Judge Papale also recommended
that I GRANT Motion for Stay [197], GRANT Motion to Dismiss a Portion of Claim 2 and Stay
the Remaining Claims [253], enter a stay of dispositive motions, allow Plaintiff to file a third
amended complaint, allow Defendants to file motions to dismiss the third amended complaint,

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and stay discovery save for the preservation of evidence. Plaintiff and Defendants filed
Objections to the F&R [329--44], and Plaintiff and Defendants filed Responses to Objections
[345, 346-54].

DISCUSSION
The magistrate judge makes only recommendations to the court, to which any party may
file written objections. The court is not bound by the recommendations of the magistrate judge,
but retains responsibility for making the final determination. The court is generally required to
make a de novo determination regarding those portions of the report or specified findings or
recommendation as to which an objection is made. 28 U.S.C. § 636(b)(l)(C). However, the
comi is not required to review, de novo or under any other standard, the factual or legal
conclusions of the magistrate judge as to those pmiions of the F&R to which no objections are
addressed. See Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003). While the level of scrutiny under which I am required to
review the F&R depends on whether or not objections have been filed, in either case, I am free to
accept, reject, or modify any pati of the F&R. 28 U.S.C. § 636(b)(l)(C).
The dominant issues raised by the objections addressed (1) Plaintiffs failure to state a
claim, (2) whether Plaintiff should be time baned from bringing a natural resource damage
assessment (NRDA) cost claim, (3) Plaintiffs failure to joint indispensable parties, and (4)
Plaintiffs lack of standing. I will take each area up in tum.
Plaintiff objects to Judge Papak's finding that its NRDA cost claim should be dismissed.
After examining the statutory background and language of CERCLA, Judge Papak held that
Plaintiff could not bring a claim for NRDA costs without also bringing a claim for natural
resource damages (NRD). The language of 42 U.S.C. § 9607(a)(4)(C) imposes liability upon a
defendant for NRD and the cost of assessing the NRD, but no pati of the statute allows a paiiy to
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recover NRDA costs alone. The language of the CERCLA regulations echo the requirement that
NRDA cost claims may only be brought with NRD claims. Judge Papak distinguishes the
cun-ent action from the case relied upon by Plaintiffs. 1 In the past case Plaintiff brought a claim
for NRD which had been stayed, but here Plaintiff has claimed NRDA costs only. I find the
statutory language is clear and am unpersuaded by Plaintiff's caselaw, and therefore I agree with
Judge Papak that Plaintiff's claim for NRDA costs should be dismissed without prejudice.
Defendants object to Judge Papak's finding that Plaintiff's pleadings sufficiently state a
claim. "To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is plausible on its face."' Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Judge
Papak examined Plaintiff's Second Amended Complaint [225] under the pleading requirements
for a CERLA response cost claim and a declaratory relief claim for NRDA costs and found that
for both claims Plaintiff's allegations were sufficient as to each Defendant. I agree with Judge
Papak' s finding that Plaintiff's allegations are adequate to survive the motion to dismiss stage on
the NRDA costs and response costs.
Plaintiff and Defendants object to Judge Papak' s recommendation that no statute of
limitations be determined at this time because the Environmental Protection Agency (EPA) has
not yet finalized the boundaries of the Portland Harbor National Priorities List (NPL) Site. Judge
Papak was unable to determine when the statute of limitations should have started to run because
the timing depends on how the EPA defines the boundaries of the Portland Harbor NPL.
Defendants argue that the alleged damages occun-ed outside the NPL Site while Plaintiff argues

1

Confederated Tribes & Bands of the Yakama Nation v. United States, 616 F. Supp. 2d 1094
(E.D. Wash. 2007).

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damages occurred inside the site. The United States points out that because the remedial
investigation into the NPL site is still active, the scope of the site is as-yet undetermined. Judge
Papak held that because he cannot definitively determine whether the damages occurred inside or
outside the site based on the fluid state of the boundaries, he cannot determine which statute of
limitations to apply. I agree with Judge Papak's reasoning and refrain from making any decision
regarding the statute of limitations on Plaintiffs NRDA cost claim.
Defendants object to Judge Papak's finding that Plaintiff has sufficiently pied Article III
standing. Article III standing requires an injury in fact, traceability, and redressability. Friends
of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81 (2000). Judge Papak first
found that Plaintiff has demonstrated Article III standing based on its already incurred and
prospective response costs. Judge Papak found that Plaintiff demonstrated injury, traceability,
and redressability based on previous CERCLA case law. Judge Papak' s analysis of statutory
standing as a natural resources trustee is more difficult due to a lack of authority, but I agree with
his outcome. Judge Papak found that Plaintiffs off-reservation fishing rights qualify under
CERCLA's definition of natural resources because at the motion to dismiss stage he takes
Plaintiffs allegations as true. He therefore finds Plaintiff has statutory and Article III standing,
and I agree.
Finally, Defendants object to Judge Papak's holding that Plaintiffs NRDA cost claim
should not be dismissed for failure to join necessary parties. Judge Papak analyzed CERCLA's
double recovery bar through the lens of Federal Rule of Civil Procedure 19 and found that
Plaintiff could recover on behalf of its joint trustees. Because the joint trustees share the same
interest-the restoration of the damaged natural resources-as long as the trustee who recovers
restores the natural resource, the interests of other joint trustees will not be jeopardized. I find

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Judge Papak' s reasoning and Rule 19 analysis sound and agree. I otherwise adopt the F &R as to
any remaining objections.
CONCLUSION

Upon review, I agree with Judge Papak's recommendation and I ADOPT the F&R [321]
as my own opinion. Accordingly I DENY the following motions: Motion to Dismiss Second
Amended Complaint for Failure to Join Parties [254]; Joint Motion to Dismiss Plaintiffs Claims
for Natural Resource Damages as Untimely [255]; Joint Motion to Dismiss Plaintiffs Claims for
Natural Resource Damages as Untimely [257]; Motion to Dismiss Plaintiffs Second Amended
Complaint [258]; Motion to Dismiss Second Amended Complaint [259]; Motion to Dismiss
[261]; and Motion to Dismiss Plaintiffs Natural Resources Damages Claim [263]. I GRANT
Motion for Stay [197], and Motion to Dismiss Portion of Claim 2 and Stay Remaining Claims
[253]. I enter a stay of dispositive motions, allow Plaintiff to file a third amended complaint,
allow Defendants to file motions to dismiss the amended complaint, and stay discovery save for
the preservation of evidence.

IT IS SO ORDERED.
~7

DATED this~ day of August, 2019.

Chief United States District Judge

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