Pakootas, et al v. Teck Cominco Metals, et al

Filing 2409

ORDER DENYING MOTION FOR RECONSIDERATION - denying 2400 Motion for Reconsideration. Signed by Senior Judge Lonny R. Suko. (CC, Case Administrator)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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JOSEPH A. PAKOOTAS, an
individual and enrolled
member of the Confederated
Tribes of the Colville
Reservation; and DONALD
R. MICHEL, an individual
and enrolled member of the
Confederated Tribes of the
Colville Reservation, and THE
CONFEDERATED TRIBES OF
THE COLVILLE RESERVATION,

)
) No. CV-04-256-LRS
)
) ORDER DENYING MOTION
) FOR RECONSIDERATION
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Plaintiffs,
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and
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THE STATE OF WASHINGTON, )
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Plaintiff-Intervenor,
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vs.
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TECK COMINCO METALS, LTD., )
a Canadian corporation,
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Defendant.
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______________________________)
BEFORE THE COURT is Defendant’s Motion For Reconsideration (ECF
No. 2400). This motion is heard without oral argument.

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I. BACKGROUND
Defendant asks the court to reconsider its April 1, 2016 “Order Re

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ORDER DENYING MOTION
FOR RECONSIDERATION-

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Reconsideration” (ECF No. 2393) in which it sua sponte reconsidered its

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“Order Granting Motion For Summary Adjudication, In Part” (ECF No. 2288) and

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found the Plaintiff Confederated Tribes Of The Colville Reservation (“Tribes”)

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could recover response costs for “enforcement activities” related to “removal”

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and/or “remedial action.”

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In its “Order Re Reconsideration,” this court rhetorically asked why the

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phrase “enforcement activities” in 42 U.S.C. §9601(25) is not sufficient to provide

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for an award of private litigants’ attorney’s fees associated with bringing a cost

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recovery action under §9607(a)(4)(B), but should be sufficient when a State or an

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Indian tribe brings a cost recovery action under §9607(a)(4)(A).1 This court’s

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answer was:
It makes sense simply because these are governmental entities
with inherent enforcement authority, unlike private parties. This
is recognized by the fact that governmental entities are entitled
to “all costs of removal or remedial action . . . not inconsistent
with the national contingency plan,” whereas private parties are
entitled only to “necessary costs of response . . . consistent with
the national contingency plan.” (Emphasis added). It is presumed
that “all costs” incurred by a governmental entity are consistent with
the NCP and a defendant has the burden of proving to the contrary.
On the other hand, a private party has the burden of proving not only
that its costs were “necessary,” but that they are also consistent with
the NCP. Governmental entities and private entities are clearly
treated differently under §9607 and that difference is sufficient to
justify awarding States and Indian tribes response costs for
“enforcement activities,” even though unlike the federal government
(EPA), they are not acting pursuant to § 9604 or some other specific
statutory provision of CERCLA (e.g., § 9606 abatement action, §
9622 settlement).

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(ECF No. 2393 at pp. 8-9)(Emphasis in original).
Defendant contends the court clearly erred in concluding the Tribes have

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42 U.S.C. § 9601(25) states: “The terms ‘respond’ or ‘response’ means

remove, removal, remedy, and remedial action; all such terms (including the terms
‘removal’ and ‘remedial action’) include enforcement activities related thereto.”
ORDER DENYING MOTION
FOR RECONSIDERATION-

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“inherent authority” to enforce CERCLA. According to Defendant, “the Tribes do

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not possess inherent authority to enforce a federal statute such as CERCLA” and

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§9601(25) “does not convey enforcement authority to Indian tribes any more than

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it conveys such authority to other public entities or private parties.” (ECF No.

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2400 at p. 3). (Italicized emphasis in original).

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II. DISCUSSION

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The Tribes correctly point out that this court’s reference to “inherent

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enforcement authority” was no more than an acknowledgment that the Tribes are

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included in the category of sovereigns set forth in §9607(a)(4)(A) as distinct from

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the “any other person” category set forth in §9607(a)(4)(B). This court found it

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significant that the sovereigns are entitled to recover “all costs,” whereas the “any

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other person[s]” are limited to “necessary costs.” Defendant does not discuss that

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distinction and instead asserts that §9607 merely “provides a procedural edge in

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the form of NCP constancy presumption to federal, state and tribal governments”

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which “has nothing to do with enforcement authority, inherent or otherwise.”

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Pursuant to Key Tronic Corp. v. U.S., 511 U.S. 809, 814-815,114 S.Ct. 1960

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(1994), the inquiry to be answered is whether in §9607(a)(4), Congress explicitly

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authorized the recovery of attorney’s fees by “the United States Government or a

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State or an Indian Tribe” as a component of response costs.2 In Key Tronic, the

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U.S. Supreme Court found that with regard to private parties, there is no such

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The Supreme Court observed that although §9607, “the liabilities and

defenses provision,” does not expressly mention recovery of attorney’s fees, “[t]he
absence of specific reference to attorney’s fees is not dispositive if the statute
otherwise evinces an intent to provide for such fees.” 511 U.S. at 815.
ORDER DENYING MOTION
FOR RECONSIDERATION-

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statutory authorization. The Supreme Court was unpersuaded “that a private

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action under § [9607] is one of the enforcement activities covered by that

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definition [in §9601(25)] and that fees should therefore be available in private

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litigation as well as in government action.” Id. at 817. The Court provided three

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reasons:

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First, although [§9607] unquestionably provides a
cause of action for private parties to seek recovery of
cleanup costs, that cause of action is not explicitly
set out in the text of the statute. To conclude that a
provision that only impliedly authorizes suit nonetheless
provides for attorney’s fees with the clarity required by
Alyeska [
] would be unusual if not unprecedented.
...
Second, Congress included two express provisions for fee
awards in SARA [ ] provisions without including a
similar provision in either § 113, which expressly authorizes
contribution claims, or in § 107, which impliedly authorizes
private parties to recover cleanup costs from other PRPs
[
]. These omissions strongly suggest a deliberate
decision not to authorize such awards.
Third, we believe it would stretch the plain terms of the
phrase “enforcement activities” too far to construe it as
encompassing the kind of private cost recovery action
at issue in this case. Though we offer no comment on the
extent to which that phrase forms the basis for the Government’s recovery of attorney’s fees through § 107, the term
“enforcement activity” is not sufficiently explicit to
embody a private action under § 107 to recover cleanup
costs. . . . .
Id. at 818-19. (Emphasis added).
Unlike the case with private parties, §9607 explicitly sets out a cause of
action for “the United States Government or a State or an Indian Tribe” to recover
“all costs of removal or remedial action incurred.” §9607 expressly authorizes
these sovereigns to recover cleanup costs from other PRPs (Potentially

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ORDER DENYING MOTION
FOR RECONSIDERATION-

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Responsible Parties).3 Finally, unlike the case with private parties, the term

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“enforcement activity” is sufficiently explicit to embody a sovereign action under

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§9607 to recover cleanup costs. In sum, §9607 provides explicit statutory

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authority for the award of a sovereign’s attorney’s fees associated with bringing a

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cost recovery action.

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The Ninth Circuit’s decision in U.S. v. Chapman, 146 F.3d 1166 (9th Cir.

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1998), supports that conclusion. Because Chapman involved a cost recovery

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action by the United States Government (Environmental Protection Agency), it is

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no surprise the circuit would cite §9604(b) which allows the federal government to

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recover costs for all of its investigations and activities, including legal work. Id. at

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1175. But the circuit did not hang its hat exclusively on that provision when it

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appears it could have done so. It also cited §9601(25) which specifically states

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that a response action includes “enforcement activities” and concluded that

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“statutory authority permits the government, which is the prevailing party in this

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litigation, to recover attorney fees attributable to the litigation as part of its

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response costs.” Id. at 1175. The Ninth Circuit added:
Congress does not have to “incant the magic phrase
‘attorney’s fees’” where it has “explicitly authorized
the recovery of costs of ‘enforcement activities’” and
enforcement activities naturally include attorney fees.
[Citation omitted]. Section 107(a)(4)(A) evinces an
intent to provide for attorney fees because it allows the
government to recover “all costs of removal or remedial
action” including “enforcement activities.”

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Finally, there are persuasive policy arguments in favor of
awarding the government its attorney fees. CERCLA is
remedial legislation that should be construed liberally to
carry out its purpose. [Citation omitted]. Congress
intended to “facilitate the prompt cleanup of hazardous
waste sites by placing the ultimate financial responsibility
for cleanup on those responsible for hazardous wastes.”

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The Tribes are not a PRP in this case.

ORDER DENYING MOTION
FOR RECONSIDERATION-

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[Citation omitted].

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Id. (Emphasis added).

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This rationale applies regardless of whether the sovereign is “the United

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States Government or a State or an Indian Tribe.” The Ninth Circuit seemingly

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recognized this in its subsequent decision in Fireman’s Fund Insurance Company

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v. City of Lodi, California, 302 F.3d 928, 953 (9th Cir. 2003), when it stated that.

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“CERCLA § [9607](a)(4) permits the United States Government or a State or an

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Indian tribe to recover all ‘reasonable attorney fees’ ‘attributable to the litigation

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as part of its response costs’ if it is the ‘prevailing party.’” (Emphasis added). 4

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Sovereigns- the United States Government or a State or an Indian Tribe- are

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statutorily authorized by virtue of §9607 alone to recover as response costs,

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attorney’s fees for “enforcement activities” related to removal and/or remedial

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action. Indian tribes and States, like the federal government, have “statutory

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authority” under §9607 which permits them “to recover attorney fees attributable

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to the litigation as part of [their] response costs.” Chapman, 146 F.3d at 1175.

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For a sovereign, whether it is “the United States Government or a State or an

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Indian Tribe,” prosecuting a §9607(a)(4)(A) cost recovery action is an

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“enforcement activity.” A sovereign can recover costs for “enforcement activities”

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which are related to removal and/or remedial action.

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The observations made by the District Court of Idaho in its unpublished

decision in Nu-West Mining Inc. v. United States, 2011 WL 2604740 (D. Idaho
2011), compared the federal government to a private party regarding rights to
attorney’s fees in CERCLA litigation. Like Fireman’s Fund, it did not consider
the the specific question of an Indian tribe’s right to attorney’s fees in a Section
9607(a)(4)(A) cost recovery action.
ORDER DENYING MOTION
FOR RECONSIDERATION-

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III. CONCLUSION
The court did not clearly err in concluding in its “Order Re

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Reconsideration” that the Tribes can recover response costs for “enforcement

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activities” related to removal and/or remedial action. This includes attorney’s fees

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and litigation costs related to removal and/or remedial action. Defendants’ Motion

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For Reconsideration (ECF No. 2400) is DENIED.

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Within twenty (20) days of the date of this order, the parties may serve and

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file supplemental memoranda (no more than twenty (20) pages in length) and

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supplemental findings of fact and conclusions of law addressing the impact of the

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revised legal posture of the case: that the Tribes are entitled to recover response

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costs for “enforcement activities” related to removal and/or remedial action.

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IT IS SO ORDERED. The District Court Executive is directed to enter
this order and forward copies to counsel of record.
DATED this

24th

day of June, 2016.

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s/Lonny R. Suko

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LONNY R. SUKO
Senior United States District Judge

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ORDER DENYING MOTION
FOR RECONSIDERATION-

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