Home » Case Summaries » 1995 » Razore v. Tulalip Tribes of Washington

 
 

Razore v. Tulalip Tribes of Washington

 

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Plaintiffs brought a citizen suit alleging the Tulalip Tribes violated the Resource Conservation and Recovery Act (RCRA) and the Clean Water Act (CWA). The district court dismissed the plaintiffs’ claims. The Ninth Circuit affirmed and held that the suit was barred by Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) section 113(h)[1] because of the ongoing remedial investigation and feasibility study (RI/FS); the district court’s denial of additional discovery was not an abuse of discretion; and the district court’s denial of the Tribe’s request for attorney’s fees was also not an abuse of discretion.

A landfill, in operation from 1965 to 1979 on the Tulalip Indian Reservation, was contaminating the SnohomishRiver and the Puget Sound. In 1979, the Environmental Protection Agency (EPA) ordered the operators, the plaintiffs in Razore, to stop disposal at the landfill because of contamination. The Tribe entered into a consent decree with the United States and the operators to close the landfill. Pursuant to the consent decree, the Tribe placed a soil covering on the landfill. However, the soil covering did not stop the contamination. Despite additional efforts, the contamination continued and EPA contacted the Tribe about the possibility of proceeding under CERCLA. The Tribe then conducted an RI/FS.

The first issue was whether section 113(h)[2] applied to suits brought while an RI/FS was taking place. The definition of a removal action in 42 U.S.C. § 9601(23) includes actions which “monitor, assess, and evaluate the release or threat of release of hazardous substances . . . .” The court held that an RI/FS was clearly covered under this definition. As a removal action, an RI/FS brings the suit under section 113(h) and in this case would bar pre-enforcement judicial review. The court also rejected the plaintiffs’ assertion that a remedy could be fashioned that did not challenge the cleanup. Although the RI/FS may result in a no-further-action alternative, in which case a cleanup would never occur, section 113(h) is an unequivocal withdrawal of federal jurisdiction.

The plaintiffs’ second argument involved the “savings” provision of CERCLA.[3]5 The “savings” provision states that CERCLA does not affect or modify obligations or liabilities under other federal and state laws. The plaintiffs argued that depriving them of the citizen suit provisions of RCRA and the CWA would extinguish their rights under those acts. However, the court noted, section 113(h) does not extinguish the plaintiffs’ claims, it just delays them until the CERCLA removal or remedial action is completed.

After upholding the denial of additional discovery, the Ninth Circuit found that the district court did not abuse its discretion when it denied the Tribe’s request for attorney’s fees. The court followed the standard set by the U.S. Supreme Court for Title VII cases. The court found that the plaintiffs’ claims were neither frivolous nor unreasonable.


[1] Id.

[2]Section 113(h) bars federal jurisdiction of challenges to CERCLA removal and remedial actions.

[3]42 U.S.C. § 9652(d) (1994).

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