Home » Case Summaries » 2011 » Pakootas v. Teck Cominco Metals, Ltd., 646 F.3d 1214 (9th Cir. 2011)


Pakootas v. Teck Cominco Metals, Ltd., 646 F.3d 1214 (9th Cir. 2011)


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Joseph Pakootas and Donald Michel, members of the Confederated Tribes of the Colville Reservation, together with the State of Washington (collectively Pakootas) sued Teck Cominco Metals, Ltd. (Teck Cominco) seeking penalties for violations of a cleanup order issued under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA).[1] The suit claimed Teck Cominco violated a United States Environmental Protection Agency (EPA) order requiring Teck Cominco to conduct a cleanup of contaminated sediments in the Columbia River, ten miles south of the Canadian border in the State of Washington. The United States District Court for the Eastern District of Washington granted Teck Cominco’s 12(b)(1)[2] motion to dismiss for lack of subject matter jurisdiction. Pakootas and the other plaintiffs appealed. The United States Court of Appeals for the Ninth Circuit affirmed, holding that Pakootas’s suit was barred by CERCLA’s limitations on review and that Pakootas did not satisfy CERCLA’s exception for suits to recover penalties. Therefore, the action by Pakootas, seeking penalties from Teck Cominco, did not give the district court subject matter jurisdiction to hear the case.

From 1905 until 1995, Teck Cominco dumped contaminated slag from a smelter in Trail, British Columbia, into the Columbia River. The contaminated sediments flowed south in the Columbia River into Washington. In 1999, the Colville Tribes petitioned EPA to designate the Columbia River as a Superfund site under CERCLA, which would require any responsible party to pay for remediation.[3] EPA studied the area’s environmental contamination, and in 2003, issued a unilateral administrative order for the responsible party, Teck Cominco, to conduct a remedial investigation and to clean up the contamination in the Columbia River.

After EPA released its unilateral administrative order, Pakootas filed suit against Teck Cominco under the citizen suit provisions of CERCLA.[4] Pakootas sought declarative and injunctive relief as well as penalties for Teck Cominco’s failure to comply with the EPA-directed cleanup.[5] The district court denied Teck Cominco’s motion to dismiss, and the Ninth Circuit affirmed the denial.[6] In that case, Pakootas v. Teck Cominco Metals, Ltd. (Pakootas I), the Ninth Circuit decided that even though the source of the pollution originated in Canada, the suit was not an extraterritorial application of CERCLA because the contamination was located in Washington.[7] 

While the Pakootas I appeal was pending, EPA and Teck Cominco reached a “contractual agreement” for Teck Cominco to conduct the remediation of the polluted Columbia River in Washington. In the agreement, Teck Cominco agreed to clean up the contaminated river and to submit to personal jurisdiction in the United States District Court if EPA took legal action to enforce the contract. EPA agreed to not sue for penalties or injunctive relief provided that Teck Cominco pursued the cleanup in a “satisfactory” manner.[8] However, EPA ultimately withdrew its unilateral administrative order and opted not to seek penalties for the 892 days in which Teck Cominco was in violation of the order.

Pakootas and the other plaintiffs then amended their complaint to seek civil penalties under CERCLA’s citizen suit provisions for the 892 days in which Teck Cominco was in violation of EPA’s unilateral administrative order.[9] Pakootas made three arguments for finding that their claim satisfied subject matter jurisdiction. First, Pakootas argued that the suit was not barred by CERCLA because section 9613 only limits the timing of the review of challenges and is not a jurisdictional statute.[10] Second, Pakootas claimed that the suit did not constitute a challenge to remedial action under CERCLA because plaintiffs only requested penalties for past non-compliance, not a review of future cleanup activities. Third, Pakootas averred that the suit satisfied an exception in section 9613 for actions to enforce orders and recover penalties.[11] 

The Ninth Circuit reviewed de novo the lower court’s dismissal for lack of subject matter jurisdiction. The court examined three issues: 1) whether CERCLA’s timing of review provisions are jurisdictional, 2) whether Pakootas’s suit for penalties constituted a challenge under section 9613, and 3) whether the section 9613(h)(2) exception for penalties applied to Pakootas.

First, the court determined that CERCLA’s timing of review provision includes a jurisdictional limitation. The court followed the United States Supreme Court’s guidance in Arbaugh v. Y & H Corp.,[12] which sets a “readily administrable bright line” rule for whether statutes limit jurisdiction.[13] CERCLA’s clear statutory language (“No federal court shall have jurisdiction . . .”)[14] convinced the Ninth Circuit that section 9613 limited subject matter jurisdiction for claims under CERCLA. Therefore, the court found that section 9613 deprives federal courts of the power “to review any challenges to removal or remediation action.”[15] 

Second, the court found that the Pakootas suit constituted a challenge to a remedial action under section 9613. While the penalties sought by Pakootas were for past violations, the central issue was the remedial action because, the court proclaimed, the penalties were the “hammer” with which EPA could enforce its remediation agreement.[16] The court reasoned that if Pakootas were allowed to bring a citizen enforcement action for civil penalties, then the punitive incentive to force Teck Cominco to carry out the agreed cleanup would be out of the hands of EPA. If EPA had no authority to enforce the agreement, Teck Cominco might decide to commit an economically efficient breach by paying the citizen suit penalties, thus leaving EPA empty-handed. Therefore, the court found that allowing citizen suits for civil penalties in this case would be against public policy because it might leave Teck Cominco financially incapable of performing its obligated remediation.

The court also based its decision on the structure of section 9613 of CERCLA. The court observed that if citizen suits to recover penalties for past violations were not “challenges” to ongoing cleanup actions under 9613(h), the exceptions to CERCLA’s denial of federal jurisdiction in section 9613(h) would be rendered superfluous.

Third, the court determined that the penalty exception in section 6913(h)(2) does not apply to citizen suits. The plain language of section 6913(h)(2) makes it clear that the exception for penalty suits only applies to the party entitled to recover the penalty.[17] In the case of CERCLA, the penalties are fines paid to the government, making the government the only entity entitled to recover the penalty. Furthermore, Congress designed section 9613(h)(2) to allow EPA—not citizens, who have their own exception under section 9613(h)(4)—to seek penalties.[18] Finally, the court reasoned, if citizens could sue under section 9613(h)(2), they could commandeer EPA’s enforcement power and use it to interfere with cleanup performance. The court concluded that citizens filing CERCLA claims do not fall within the section 6913(h)(2) exception. Without an applicable exception, the court held that it lacked subject matter jurisdiction to hear Pakootas’s claim.

In summary, the Ninth Circuit affirmed the district court’s dismissal of Pakootas’s suit based on lack of subject matter jurisdiction. The court held that section 9613(h) bars challenges by citizens to recover penalties for past violations, and that citizen suits do not satisfy the section 9613(h)(2) exception.

[1] 42 U.S.C. §§ 9601–9675 (2006). Section 310 details CERCLA’s citizen suit provision. Id. § 9659(a).

[2] Fed. R. Civ. P. 12(b)(1).

[3] See generally Anthony R. Chase & John Mixon, CERCLA: Convey to a Pauper and Avoid Cost Recovery Under Section 107(A)(1)?, 33 Envtl. L. 293 (2003) (discussing the polluter pays principle).

[4] See Pakootas v. Teck Cominco Metals, Ltd. (Pakootas I), 452 F.3d 1066, 1068, 1070 (9th Cir. 2006); 42 U.S.C. § 9659(a)(1) (2006) (“[A]ny person may commence a civil action on his own behalf . . . against any person . . . who is alleged to be in violation of any standard, regulation, condition, requirement, or order which has become effective pursuant to this chapter . . . .”).

[5] See Pakootas I, 452 F.3d at 1070.

[6] Id. at 1071, 1082.

[7] Id. at 1077–79. The decision in Pakootas I rested on CERCLA’s definition of “facility,” which the court interpreted to mean “any site or area where a hazardous substance has . . . come to be located.” Id. at 1074.

[8] Pakootas v. Teck Cominco Metals, Ltd. (Pakootas II), 646 F.3d 1214, 1217–18 (9th Cir. 2011).

[9] See 42 U.S.C. § 9659(a)(1) (2006).

[10] 42 U.S.C. § 9613(h) (2006) (“Timing of review—No Federal court shall have jurisdiction under Federal law other than under section 1332 of title 28 . . . or under State law which is applicable or relevant and appropriate under section 9621 of this title . . . to review any challenges to removal or remedial action selected under section 9604 of this title . . . .”).

[11] 42 U.S.C. § 9613(h)(2) (2006) (exempting “action[s] to enforce an order issued under section 9606(a) of this title or to recover a penalty for violation of such order.”).

[12] 546 U.S. 500 (2006).

[13] Id. at 516.

[14] 42 U.S.C. § 9613(h) (2006).

[15] Id. 

[16] Pakootas II, 646 F.3d at 1221.

[17] Pakootas II, 646 F.3d at 1224–25.

[18] See 42 U.S.C. § 9613(h)(2), (4) (2006).

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