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

Filing 2827

ORDER GRANTING 2771 JOINT MOTION AS TO CERTAIN AFFIRMATIVE DEFENSES. Affirmative Defenses 10-16, listed in ECF No. 2117 , are DISMISSED. Affirmative Defenses 15-21, listed in ECF No. 2569 , are DISMISSED. Signed by Chief Judge Stanley A Bastian. (BM, Case Administrator)

1

FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

2

Dec 27, 2023

3

SEAN F. MCAVOY, CLERK

4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF WASHINGTON

8
9 JOSEPH A. PAKOOTAS, an individual
10 and enrolled member of the Confederated

No. 2:04-CV-00256-SAB

11 Tribes of the Colville Reservation; and
12 DONALD R. MICHEL, an individual and

ORDER GRANTING JOINT

13 enrolled member of the Confederated

MOTION AS TO CERTAIN

14 Tribes of the Colville Reservation; and

AFFIRMATIVE DEFENSES

15 THE CONFEDERATED TRIBES OF
16 THE COLVILLE RESERVATION,
Plaintiffs,

17
18

and

19 THE STATE OF WASHINGTON,
Plaintiff-Intervenor,

20
21

v.

22 TECK COMINCO METALS, LTD., a
23 Canadian corporation,
24

Defendant.

25
26
27
28
ORDER GRANTING JOINT MOTION AS TO CERTAIN
AFFIRMATIVE DEFENSES #1

1

A motions hearing was held in the above-captioned matter on December 14,

2 2023 in Spokane, Washington. Defendant was represented by Deborah Baum,
3 Amanda Halter, Deanna Willman, and Ashleigh Myers. Plaintiff Pakootas and the
4 Confederated Tribes of the Colville Reservation were represented by Paul Dayton.
5 Intervenor-Plaintiff State of Washington was represented by Joshua Osborne-Klein
6 and Dylan Stonecipher.
7

Pending before the Court was Plaintiffs’ Motion for Partial Summary

8 Judgment on Certain Affirmative Defenses, ECF No. 2771, Defendant’s Motion
9 for Partial Summary Judgment on Plaintiffs’ Joint Natural Resource Damage
10 Claims, ECF No. 2774, and Defendant’s Motion for Partial Summary Judgment on
11 the Colville Tribes’ “Tribal Service Loss” Claims, ECF No. 2777.
12

At the hearing, the Court heard oral argument on Defendant’s two motions

13 for partial summary judgment. The Court took both motions under advisement. As
14 to Plaintiff’s motion for partial summary judgment, Defendant indicated that the
15 motion did not need to be argued because Defendant no longer wished to utilize
16 affirmative defenses 10 – 16 in answer to CCT’s Fourth Amended Complaint and
17 affirmative defenses 15 – 21 in answer to Washington State’s Fifth Amended
18 Complaint. See ECF Nos. 2117 and 2569. The Court interpreted this as stipulation
19 and granted Plaintiffs’ motion.
20

Accordingly, IT IS HEREBY ORDERED:

21

1.

Plaintiffs’ Motion for Partial Summary Judgment on Certain

22 Affirmative Defenses, ECF No. 2771, is GRANTED.
23

2.

Affirmative Defenses 10 – 16, listed in ECF No. 2117, are

24 DISMISSED.
25

No. 10 – Harm Was Not Caused by Defendant

26

No. 11 – Any Harm Suffered Was Caused by Plaintiff/Third-

27

Parties

28

No. 12 – Disposal and Release not at Same Facility
ORDER GRANTING JOINT MOTION AS TO CERTAIN
AFFIRMATIVE DEFENSES #2

1

No. 13 – Joint and Several Liability Not Permitted

2

No. 14 – Apportionment

3

No. 15 – Release Caused by a Third Party

4

No. 16 – Release Permitted by Law

5

3.

Affirmative Defenses 15 – 21, listed in ECF No. 2569, are

6 DISMISSED.
7

No. 15 – Harm Was Not Caused by Defendant

8

No. 16 – Any Harm Suffered Was Caused by the State/Third

9

Parties

10

No. 17 – Disposal and Release Not at Same Facility (CERCLA)

11

No. 18 – Joint and Several Liability Not Permitted

12

No. 19 – Liability Proportionate to Apportionment

13

No. 20 – Release Caused by a Third Party

14

No. 21 – Release Permitted by Law

15

IT IS SO ORDERED. The District Court Clerk is hereby directed to enter

16 this Order and to provide copies to counsel.
17

DATED this 27th day of December 2023.

18
19
20
21
22
23
24

Stanley A. Bastian

Chief United States District Judge

25
26
27
28
ORDER GRANTING JOINT MOTION AS TO CERTAIN
AFFIRMATIVE DEFENSES #3