Appellate Court Affirms $8.3 Million against Teck for Tribes’ Past UCR Site Costs

The U.S. Court of Appeals for the 9th Circuit affirmed a trial court’s assessment of approximately $8.3 million in reimbursement of past CERCLA response costs to the Confederated Tribes of the Colville Reservation (the Tribes) against Teck Cominco Metals (Teck) relating to the Upper Columbia River (UCR) CERCLA Site.  Pakootas v. Teck Cominco Metals.  The $8.3 million award consisted of approximately $5.0 million in legal fees and $3.3 million for experts, scientific investigations, and related vendor costs.

Teck Lost Jurisdictional Arguments
Teck challenged jurisdiction on two grounds.  First, Teck claimed no U.S. court could make an assessment against it because the alleged disposal at the UCR Site originated from its mining operation in Canada.  Second, Teck argued the assessment of past costs could not support a final judgment, and appellate courts have jurisdiction only as to final judgments. 

The 9th Circuit held U.S. courts could exercise jurisdiction over Teck based on Teck’s Canadian mining operation.  Evidence indicated Teck’s management knew its discharge to the Columbia River would travel across the border and negatively affect the ecosystem south of the U.S. border.

The 9th Circuit also held the assessment could support a final judgment.  The Tribes demanded reimbursement for past response costs and compensation for natural resource damages.  If past response costs and natural resource damages are separate claims, the procedural rules allow entry of a final judgment only as to past response costs.  Courts often struggle to determine what are separate claims and what are multiple parts of a single claim.  Teck argued past response costs and natural resource damages are parts of a single CERCLA claim, so that no final judgment could yet be entered. (On this point, Teck’s appeal followed by its argument against jurisdiction was Teck’s way of challenging the trial court’s determination that the $8.3 million assessment could be a final judgment.) The 9th Circuit held the demand for past response costs was a separate claim from natural resource damages, and the trial court had discretion to make assessment of past response costs a final judgment.

A Tribe Is a Government
Under CERCLA, the Tribes are governments and have the same ability to recover costs as states and the federal government.  Government claims under CERCLA are relatively easy to make, according to the 9th Circuit.  If government incurred costs are not an “unreasonable means” of accomplishing cleanup, removal, monitoring, assessment, or minimization of the affects of the release of hazardous substances, they are recoverable as removal costs.

Teck argued the Tribes’ costs for experts and scientific investigations were litigation and not removal costs, but the 9th Circuit determined the trial court properly awarded the Tribes “all investigation expenses as costs of removal, even though many of these activities played double duty supporting both cleanup and litigation efforts.” 

Teck also argued the Tribes did not demonstrate a need to file suit, and thus should not recover attorneys’ fees.  The 9th Circuit rejected that argument, holding governments can recover attorneys’ fees without showing the suit was necessary for cleanup.

For a copy of the 9th Circuit’s opinion http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/14/16-35742.pdf

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