Case :0-cv-00-LRS Document Filed 0//00 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 0 0 JOSEPH A. PAKOOTAS, an individual and enrolled member of e Confederated Tribes of e Colville Reservation; and DONALD L. MICHEL, an individual and enrolled member of e Confederated Tribes of e Colville Reservation; and e CONFEDERATED TRIBES OF THE COLVILLE RESERVATION, And Plaintiffs, STATE OF WASHINGTON, Intervenor, v. Plaintiff- TECK COMINCO METALS, LTD., a Canadian corporation, Defendant. ) No. CV-0--LRS ORDER GRANTING PLAINTIFF S (b)() MOTION TO DISMISS, INTER ALIA BEFORE THE COURT are e Plaintiff s Fed. R. Civ. P. (b)() Motion To Dismiss Defendant s Counterclaims (Ct. Rec. ), and Plaintiff s Request For Judicial Notice In Support Of Its (b)() Motion (Ct. Rec. ). Oral argument was heard on June, 00. Paul J. Dayton, Esq., argued (b)() MOTION TO DISMISS, INTER ALIA-
Case :0-cv-00-LRS Document Filed 0//00 0 0 on behalf of Plaintiff Confederated Tribes Of The Colville Reservation ( Tribes ). Mark E. Elliott argued on behalf of Defendant Teck Cominco Metals, Ltd. ( Teck ). I. BACKGROUND In its Answer to e Second Amended Complaint of e Tribes (Ct. Rec ), Defendant Teck asserts two CERCLA counterclaims against e Tribes, contending e Tribes caused and contributed to e hazardous substances contamination of Lake Roosevelt. As part of its counterclaims against e Tribes for cost recovery, contribution and declaratory relief, Teck alleges e Tribes are covered persons wiin e meaning of at term as it is used in CERCLA, U.S.C. Section 0(). The Tribes move to dismiss e counterclaims, asserting ey are not person[s] subject to liability under CERCLA, U.S.C. Section 0(a), and erefore, at Teck s counterclaims are not based on a cognizable legal eory. II. DISCUSSION A. (b)() Standard/Judicial Notice A Rule (b)() dismissal is proper only where ere is eier a "lack of a cognizable legal eory" or "e absence of sufficient facts alleged under a cognizable legal eory." Balistreri v. Pacifica Police Dept., 0 F.d, ( Cir. 0). In reviewing a (b)() motion, e court must accept as true all material allegations in e complaint, as well as reasonable inferences to be drawn from such allegations. Mendocino Environmental Center v. Mendocino Comprehensive Environmental Response, Compensation, and Liability Act, U.S.C. Section 0 et. seq. (b)() MOTION TO DISMISS, INTER ALIA-
Case :0-cv-00-LRS Document Filed 0//00 0 0 County, F.d, 0 ( Cir. ); NL Indus., Inc. v. Kaplan, F.d, ( Cir. ). The sole issue raised by a (b)() motion is wheer e facts pleaded, if established, would support a claim for relief; erefore, no matter how improbable ose facts alleged are, ey must be accepted as true for purposes of e motion. Neitzke v. Williams, 0 U.S., -, 0 S.Ct. (). Unless e court converts e Rule (b)() motion into a summary judgment motion, or e defense is apparent from matters of which e court may take judicial notice, e court cannot consider material outside e complaint (e.g. facts presented in briefs, affidavits or discovery materials). Arpin v. Santa Clara Valley Transp. Agency, F.d, ( Cir. 00). A matter at is properly e subject of judicial notice (Fed. R. Evid. 0) may be considered along wi e complaint when deciding a (b)() motion to dismiss wiout converting e motion to one for summary judgment. MGIC Indem. Corp. v. Weisman, 0 F.d 00, 0 ( Cir. ). The court may properly consider matters of public record (e.g. pleadings, orders and oer papers on file in anoer action pending in e court; records and reports of administrative bodies; or e legislative history of laws, rules or ordinances) as long as e facts noticed are not subject to reasonable dispute. Intri-Plex Technologies, Inc. v. Crest Group, Inc., F.d 0, 0 ( Cir. 00). B. Statutory Language U.S.C. Section 0 imposes liability upon certain persons (i.e, owner/operator, arranger, transporter) for costs incurred in responding to a release of hazardous substances. Person is defined in Section 0() as an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, United States Government, State, municipality, commission, (b)() MOTION TO DISMISS, INTER ALIA-
Case :0-cv-00-LRS Document Filed 0//00 0 political subdivision of a State, or any interstate body. Indian tribe is not expressly included in is list and indeed, is defined separately at Section 0(). [W]hen e statute s language is plain, e sole function of e courts- at least where e disposition required by e text is not absurd- is to enforce it according to its terms. Hartford Underwriters Insurance Co. v. Union Planters Bank, N.A., 0 U.S.,, 0 S.Ct. (000). In Hartford, e U.S. Supreme Court reiterated what it had previously said in Connecticut National Bank v. Germain, 0 U.S., -, S.Ct. (): [I]n interpreting a statute a court should always turn first to one, cardinal canon before all oers. We have stated time and again at courts must presume at a legislature says in a statute what it means and means in a statute what it says ere. [Citations omitted]. When e words of a statute are unambiguous, en, is first canon is also e last: judicial inquiry is complete. [Citation omitted]. CERCLA s definition of person is plain. It does not include Indian tribes. Finding at CERCLA liability cannot be imposed on Indian tribes per e terms of e statute is not an absurd result. Whereas CERCLA specifically provides for liability to an Indian tribe, U.S.C. Section 0(a)()(A) and 0(f), it contains no specific provision for e liability of an Indian tribe. Furermore, sovereigns will not be read into e term person unless ere is affirmative evidence at Congress intended to include 0 Under e canon of statutory construction expressio unius est exclusio alterius, e express mentioning of one ing implies exclusion of anoer. Thus, to e extent it is necessary to rely on any additional canons of statutory construction beyond plain meaning, expressio unius est exclusio alterius supports e conclusion at Indian tribes are not persons subject to CERCLA liability. (b)() MOTION TO DISMISS, INTER ALIA-
Case :0-cv-00-LRS Document Filed 0//00 0 sovereigns. Wilson v. Omaha Indian Tribe, U.S.,, S.Ct. (); Fayed v. CIA, F.d, (D.C. Cir. 000). Congress can waive a tribe s immunity from suit, but at waiver must be clearly expressed. Congress has plenary power over tribal sovereignty, but must make clear its intent to limit at sovereignty. Santa Clara Pueblo v. Martinez, U.S.,, S.Ct. 0 (); Fletcher v. United States, F.d, (0 Cir. ). Defendant Teck, as it must, acknowledges CERCLA is silent on e issue of wheer tribes are covered as persons. Defendant acknowledges ere is no legislative history regarding wheer Congress intended Indian tribes to be subject to liability under CERCLA. Nevereless, Defendant asserts is is of no consequence since it is clear what CERCLA is intended to address, at being holding parties responsible for cleaning up hazardous substances contamination caused by em. Defendant, a foreign (Canadian) corporation, which e Nin Circuit in Pakootas v. Teck Cominco Metals, Ltd., F.d 0, 0 ( Cir. 00) found was subject to CERCLA liability despite e fact at its disposal activity occurred in Canada, says ere is no reason why an 0 Absent clear Congressional intent and an analysis of such intent, it matters not at courts may have somehow inadvertently implied at Indian tribes are persons subject to CERCLA liability. Defendant s reliance on United States v. Atlantic Research Corp., U.S., S.Ct., (00), and United States v. Friedland, F.Supp.d, (D. Colo. 00), is not persuasive. Those cases did not specifically deal wi e question of wheer Indian tribes are subject to liability under CERCLA. (b)() MOTION TO DISMISS, INTER ALIA-
Case :0-cv-00-LRS Document Filed 0//00 0 0 Indian tribe should be treated any differently. This, however, ignores e fact at corporations are specifically among e enumerated entities included wiin e definition of person in U.S.C. Section 0(), whereas Indian tribes are not, and do not fall neatly into e definition of any of e oer enumerated entities. Furermore, a foreign corporation is not generally entitled to sovereign immunity, unlike an Indian tribe which has been recognized by e United States Government. An Indian tribe simply is not just any oer party for e purpose of ascertaining wheer liability is auorized by CERCLA. Defendant Teck argues at CERCLA s use of e term municipality should be read in pari materia wi oer federal environmental statutes, including e Resource Conservation and Recovery Act of (RCRA), U.S.C. 0 et seq., e Safe Drinking Water Act (SDWA), U.S.C. 00f et. seq., and e Clean Water Act (CWA), U.S.C. et seq. Each of ose oer environmental statute defines person to include municipalities, and in turn, defines municipalities to specifically include Indian tribes. U.S.C. 0()(A); U.S.C. 00(f)(0); and U.S.C. (). In oer words, e argument is at even ough CERCLA does not define e term municipality, e fact CERCLA defines person to include municipalities should lead e court to conclude at CERCLA s definition of person includes Indian tribes. The in pari materia canon of statutory construction is only employed Alough e disposal activity occurred in Canada, releases of hazardous substances as a result of at disposal activity occurred in e United States (specifically in Lake Roosevelt). Accordingly, in Pakootas, e Nin Circuit found Teck was subject to CERCLA and at CERCLA was not being applied extraterritorially. (b)() MOTION TO DISMISS, INTER ALIA-
Case :0-cv-00-LRS Document Filed 0//00 0 0 where a statute is ambiguous. For reasons set for above, CERCLA is not ambiguous wi respect to wheer Indian tribes are covered persons subject to CERCLA liability. Moreover, application of in pari materia is problematic because: ) waiver of tribal sovereign immunity requires an expression of clear intent on e part of Congress; and ) even wiout regard to sovereign immunity, CERCLA is distinct from oer environmental statutes- RCRA, e SDWA, and e CWA- and does not address precisely e same subject matter. In Pakootas, e Nin Circuit pointed out e distinction between CERCLA and RCRA: CERCLA is only concerned wi imposing liability for cleanup of hazardous waste disposal sites where ere has been an actual or reatened release of hazardous substances into e environment. CERCLA does not obligate parties (eier foreign or domestic) liable for cleanup costs to cease e disposal activities such as ose at made em liable for cleanup costs; regulating disposal activities is in e domain of RCRA or oer regulatory statutes. F.d at 0 (emphasis added). RCRA regulates disposal activities, whereas CERCLA concerns itself wi liability for cleaning up hazardous substances which have already been disposed and which have now been released or are reatened to be released into e environment. See also Meghrig v. KFC Western, Inc., U.S., S.Ct., () (RCRA allows landowner to seek relief for present imminent and substantial reats to heal and/or environment; RCRA has an immediate action stance, where CERCLA has a more traditional tort liability stance). Furermore, CERCLA treats an Indian tribe differently from a municipality. For example, an Indian tribe is entitled to costs of a removal or remedial action not inconsistent wi e national contingency plan, U.S.C. Section 0(a)()(A), whereas any oer person (i.e., a municipality) must prove at costs incurred are consistent wi e national contingency plan, (b)() MOTION TO DISMISS, INTER ALIA-
Case :0-cv-00-LRS Document Filed 0//00 0 0 U.S.C. Section 0(a)()(B). The latter contains a more rigorous evidentiary burden. The costs associated wi response action undertaken by an Indian tribe can be avoided by e defendants only if e defendants can show ey are not consistent wi e national contingency plan (NCP), whereas response action costs incurred by any oer person require at oer person to show his action is consistent wi e NCP before he will be allowed to recover his costs. Town of Bedford v. Rayeon, Co., F.Supp., (D. Mass. ). Finally, Defendant Teck contends an Indian tribe qualifies as eier an association or as a consortium under e definition of person in U.S.C. Section 0(). As wi e term municipality, e terms association and consortium are not specifically defined in CERCLA. CERCLA has existed for nearly 0 years, and RCRA, wi it definition of municipalities including Indian tribes, has existed in excess of 0 years. In at time, Congress has had more an an adequate opportunity to address any oversight regarding liability of Indian tribes under CERCLA. If Congress intended to make Indian tribes liable under CERCLA, one has to ask why it did not specifically include Indian tribes among e entities covered by e term person in Section 0(), nor specifically define municipality, association, or consortium to include Indian tribes. It seems extremely implausible at Congress would simply leave it to chance at some court would conclude an Indian tribe qualifies as one of ose entities subject to CERCLA liability. There may be some very compelling policy reasons why Indian tribes should not be exempt from CERCLA liability, but at is someing Congress needs to address, not is court. Defendant asserts at [u]nder e Tribes interpretation of CERCLA, an Indian tribe could never, under any circumstances, be found to be a responsible party under CERCLA, and [a]s a result, an Indian tribe could literally operate a dump for e disposal of (b)() MOTION TO DISMISS, INTER ALIA-
Case :0-cv-00-LRS Document Filed 0//00 0 0 hazardous substances, wi complete impunity under CERCLA. However, such a conclusion is of dubious validity inasmuch as a tribe s disposal activities would clearly be subject to regulation under RCRA as well as SDWA and e CWA. There is auority at when an Indian tribe files suit, it waives it immunity as to counterclaims of a defendant at sound in recoupment. Berrey v. ASARCO Incoporated, F.d, - (0 Cir. 00); Rosebud Sioux Tribe v. Val-U Constr. Co., 0 F.d 0, ( Cir. ); and Jicarilla Apache Tribe v. Andrus, F.d, (0 Cir. ). Claims in recoupment arise out of e same transaction or occurrence, seek e same kind of relief as e plaintiff, and do not seek an amount in excess of at sought by e plaintiff. Berrey, F.d at. Sovereign immunity is waived because recoupment is in e nature of a defense arising out of some feature of e transaction upon which e [sovereign s] action is grounded. Id., quoting Bull v. United States, U.S.,, S.Ct. (). Waiver under e doctrine of recoupment does not depend on prior waiver by e sovereign or an independent congressional abrogation of immunity. Id. at. In Berrey, e Ten Circuit held e defendants counterclaims for common law contribution and indemnity against e Quapaw Tribe were not waived because ose counterclaims sounded in recoupment. The Tribe also argued for dismissal of defendants CERCLA counterclaims for contribution, contending e counterclaims were not permitted because CERCLA s definition of person does not include Indian tribes. The Ten Circuit held it did not have jurisdiction over e issue and declined to address e argument. Id. at. In Berrey, e Quapaw Tribe sought dismissal of CERCLA counterclaims based on statutory interpretation, not tribal sovereign immunity. So too here, e Confederated Tribes Of The Colville Reservation seek dismissal of (b)() MOTION TO DISMISS, INTER ALIA-
Case :0-cv-00-LRS Document Filed 0//00 0 0 Defendant s CERCLA counterclaims based on statutory interpretation, not sovereign immunity. As is apparent, however, e court s interpretation of CERCLA is necessarily colored by sovereign immunity principles. C. EPA Interpretation and Indian Canons of Construction Because e plain language of CERCLA reveals at Indian tribes are not subject to liability under at statute, ere is no reason for e court to consider how EPA has interpreted CERCLA as it pertains to tribal liability. CERCLA is not silent or ambiguous on is issue and accordingly, ere is no reason for e court to consider and give deference to EPA s interpretation. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., U.S., -, 0 S.Ct. (). Congressional intent to exclude Indian tribes from liability is clear from e language of e statute, a conclusion at is reinforced by e fact ere is no affirmative evidence at Congress intended to include sovereigns in e definition of person. For e same reasons, e court need not consider application of Indian law canons of construction in determining wheer ere is tribal liability under CERCLA. III. CONCLUSION The Colville Confederated Tribes Fed. R. Civ. P. (b)() Motion To Dismiss Defendant s Counterclaims (Ct. Rec. ) is GRANTED. Defendant s CERCLA counterclaims against e Tribes are DISMISSED wi prejudice as ey are not premised on a cognizable legal eory. The legal deficiency of ese counterclaims cannot be cured by an amended complaint or by any oer means. The Tribes Request For Judicial Notice In Support Of Its (b)() Motion (Ct. Rec. ) is DISMISSED as moot since it is unnecessary to (b)() MOTION TO DISMISS, INTER ALIA- 0
Case :0-cv-00-LRS Document Filed 0//00 consider EPA s interpretation of CERCLA in arriving at a resolution of e issue presented to e court. IT IS SO ORDERED. The District Court Executive is directed to enter is order and forward copies to counsel of record. DATED is day of June, 00. s/lonny R. Suko LONNY R. SUKO United States District Judge 0 0 (b)() MOTION TO DISMISS, INTER ALIA-