Opinion
No. 3:17-cv-00164-JR
2019-08-08
CONFEDERATED TRIBES AND BANDS OF the YAKAMA NATION, Plaintiff, v. AIRGAS USA, LLC et al., Defendants.
OPINION AND ORDER
On January 22, 2019, Magistrate Judge Paul Papak issued his Findings and Recommendation (F&R) [321], recommending that I DENY the following motions: Motion to Dismiss Second Amended Complaint for Failure to Join Parties [254]; Joint Motion to Dismiss Plaintiff's Claims for Natural Resource Damages as Untimely [255]; Joint Motion to Dismiss Plaintiff's Claims for Natural Resource Damages as Untimely [257]; Motion to Dismiss Plaintiff's Second Amended Complaint [258]; Motion to Dismiss Second Amended Complaint [259]; Motion to Dismiss for Failure to Join Necessary Parties [261]; and Joint Motion to Dismiss Plaintiff's Natural Resources Damages Claim [263]. Judge Papak also recommended that I GRANT Motion for Stay [197], GRANT Motion to Dismiss a Portion of Claim 2 and Stay the Remaining Claims [253], enter a stay of dispositive motions, allow Plaintiff to file a third amended complaint, allow Defendants to file motions to dismiss the third amended complaint, and stay discovery save for the preservation of evidence. Plaintiff and Defendants filed Objections to the F&R [329–44], and Plaintiff and Defendants filed Responses to Objections [345, 346–54].
DISCUSSION
The magistrate judge makes only recommendations to the court, to which any party may file written objections. The court is not bound by the recommendations of the magistrate judge, but retains responsibility for making the final determination. The court is generally required to make a de novo determination regarding those portions of the report or specified findings or recommendation as to which an objection is made. 28 U.S.C. § 636(b)(1)(C). However, the court is not required to review, de novo or under any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the F&R to which no objections are addressed. See Thomas v. Arn , 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ; United States v. Reyna-Tapia , 328 F.3d 1114, 1121 (9th Cir. 2003). While the level of scrutiny under which I am required to review the F&R depends on whether or not objections have been filed, in either case, I am free to accept, reject, or modify any part of the F&R. 28 U.S.C. § 636(b)(1)(C).
The dominant issues raised by the objections addressed (1) Plaintiff's failure to state a claim, (2) whether Plaintiff should be time barred from bringing a natural resource damage assessment (NRDA) cost claim, (3) Plaintiff's failure to joint indispensable parties, and (4) Plaintiff's lack of standing. I will take each area up in turn.
Plaintiff objects to Judge Papak's finding that its NRDA cost claim should be dismissed. After examining the statutory background and language of CERCLA, Judge Papak held that Plaintiff could not bring a claim for NRDA costs without also bringing a claim for natural resource damages (NRD). The language of 42 U.S.C. § 9607(a)(4)(C) imposes liability upon a defendant for NRD and the cost of assessing the NRD, but no part of the statute allows a party to recover NRDA costs alone. The language of the CERCLA regulations echo the requirement that NRDA cost claims may only be brought with NRD claims. Judge Papak distinguishes the current action from the case relied upon by Plaintiffs. In the past case Plaintiff brought a claim for NRD which had been stayed, but here Plaintiff has claimed NRDA costs only. I find the statutory language is clear and am unpersuaded by Plaintiff's caselaw, and therefore I agree with Judge Papak that Plaintiff's claim for NRDA costs should be dismissed without prejudice.
Confederated Tribes & Bands of the Yakama Nation v. United States , 616 F. Supp. 2d 1094 (E.D. Wash. 2007).
Defendants object to Judge Papak's finding that Plaintiff's pleadings sufficiently state a claim. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Judge Papak examined Plaintiff's Second Amended Complaint [225] under the pleading requirements for a CERLA response cost claim and a declaratory relief claim for NRDA costs and found that for both claims Plaintiff's allegations were sufficient as to each Defendant. I agree with Judge Papak's finding that Plaintiff's allegations are adequate to survive the motion to dismiss stage on the NRDA costs and response costs.
Plaintiff and Defendants object to Judge Papak's recommendation that no statute of limitations be determined at this time because the Environmental Protection Agency (EPA) has not yet finalized the boundaries of the Portland Harbor National Priorities List (NPL) Site. Judge Papak was unable to determine when the statute of limitations should have started to run because the timing depends on how the EPA defines the boundaries of the Portland Harbor NPL. Defendants argue that the alleged damages occurred outside the NPL Site while Plaintiff argues damages occurred inside the site. The United States points out that because the remedial investigation into the NPL site is still active, the scope of the site is as-yet undetermined. Judge Papak held that because he cannot definitively determine whether the damages occurred inside or outside the site based on the fluid state of the boundaries, he cannot determine which statute of limitations to apply. I agree with Judge Papak's reasoning and refrain from making any decision regarding the statute of limitations on Plaintiff's NRDA cost claim.
Defendants object to Judge Papak's finding that Plaintiff has sufficiently pled Article III standing. Article III standing requires an injury in fact, traceability, and redressability. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc. , 528 U.S. 167, 180–81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Judge Papak first found that Plaintiff has demonstrated Article III standing based on its already incurred and prospective response costs. Judge Papak found that Plaintiff demonstrated injury, traceability, and redressability based on previous CERCLA case law. Judge Papak's analysis of statutory standing as a natural resources trustee is more difficult due to a lack of authority, but I agree with his outcome. Judge Papak found that Plaintiff's off-reservation fishing rights qualify under CERCLA's definition of natural resources because at the motion to dismiss stage he takes Plaintiff's allegations as true. He therefore finds Plaintiff has statutory and Article III standing, and I agree.
Finally, Defendants object to Judge Papak's holding that Plaintiff's NRDA cost claim should not be dismissed for failure to join necessary parties. Judge Papak analyzed CERCLA's double recovery bar through the lens of Federal Rule of Civil Procedure 19 and found that Plaintiff could recover on behalf of its joint trustees. Because the joint trustees share the same interest—the restoration of the damaged natural resources—as long as the trustee who recovers restores the natural resource, the interests of other joint trustees will not be jeopardized. I find Judge Papak's reasoning and Rule 19 analysis sound and agree. I otherwise adopt the F&R as to any remaining objections.
CONCLUSION
Upon review, I agree with Judge Papak's recommendation and I ADOPT the F&R [321] as my own opinion. Accordingly I DENY the following motions: Motion to Dismiss Second Amended Complaint for Failure to Join Parties [254]; Joint Motion to Dismiss Plaintiff's Claims for Natural Resource Damages as Untimely [255]; Joint Motion to Dismiss Plaintiff's Claims for Natural Resource Damages as Untimely [257]; Motion to Dismiss Plaintiff's Second Amended Complaint [258]; Motion to Dismiss Second Amended Complaint [259]; Motion to Dismiss [261]; and Motion to Dismiss Plaintiff's Natural Resources Damages Claim [263]. I GRANT Motion for Stay [197], and Motion to Dismiss Portion of Claim 2 and Stay Remaining Claims [253]. I enter a stay of dispositive motions, allow Plaintiff to file a third amended complaint, allow Defendants to file motions to dismiss the amended complaint, and stay discovery save for the preservation of evidence.
IT IS SO ORDERED.
FINDINGS AND RECOMMENDATION
PAPAK, Magistrate Judge:
Plaintiff Confederated Tribes and Bands of the Yakama Nation brings this action under section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9607, against twenty-nine Defendants. Plaintiff seeks to recover the response costs it has incurred to address Defendants' alleged releases of hazardous substances at the Portland Harbor, as well as the Willamette River downstream from the Portland Harbor, the Multnomah Channel, and the Lower Columbia River. Plaintiff also seeks declaratory relief on Defendants' liability for (1) Plaintiff's future response costs, and (2) for the costs of assessing damages for the injury, destruction, and loss of natural resources. Second Am. Compl. ¶ 1, ECF No. 225 (Yakama Complaint).
Defendants move to dismiss, asserting Plaintiff (1) failed to state a claim; (2) failed to timely file its claim for natural resource damage assessment costs; (3) failed to join other natural resource trustees as parties; and (4) lacks standing, Defendant United States moves to stay any claims that remain after this court rules on the motions to dismiss. U.S. Mot. Dismiss/Stay 16-18, ECF No. 253. Defendants NW Natural, City of Portland, and Port of Portland also move to stay. Defs.' Mot. Stay, ECF No. 197.
For the following reasons, I recommend granting without prejudice the United States' motion to dismiss Plaintiff's claim for the costs of natural resource damage assessment; denying Defendants' motions to dismiss based on the statute of limitations, failure to state a claim, standing, and failure to join parties; and granting the motions to stay. The stay should prohibit any party from filing new pleadings, motions, or claims, except that Plaintiff may file a third amended complaint, and Defendants may move to dismiss that complaint under Federal Rule of Procedure 12(b)(6). No discovery should occur during the stay other than to preserve evidence or testimony that would otherwise be unavailable when the stay expires.
The following background facts are from the Second Amended Complaint (Yakama Complaint), ECF No. 225, unless otherwise noted.
Plaintiff is a federally recognized Indian tribe, "the legal successor in interest to the Indian signatories to the Treaty with the Yakamas of June 9, 1855" (Treaty). Yakama Compl. ¶ 4 (citing 12 Stat. 951, 1855 WL 10420 ). The Lower Willamette River in and near Portland "is and has been a ‘usual and accustomed fishing place’ " of Plaintiff under Article 3 of the Treaty. Yakama Compl. ¶ 43.
The Portland Harbor section of the Lower Willamette River has been an industrial water corridor for many decades. Yakama Compl. ¶ 44. Over the years, Defendants and their predecessors in interest at the Portland Harbor have built and repaired ships; treated wood and milled lumber; operated steel mills, smelters, and foundries; recycled metal; manufactured industrial gases; and produced and distributed electricity. Yakama Compl. ¶ 44. Defendants' industrial activities have released hazardous substances into the Lower Willamette River, Multnomah Channel, and Lower Columbia River through storm water and waste water outfalls, spills, sewer overflows, bank erosion, and groundwater migration. Yakama Compl. ¶¶ 44, 249.
In 2000, the U.S. Environmental Protection Agency (EPA) listed the Portland Harbor Superfund site on the National Priorities List (NPL). 65 Fed. Reg. 75, 179-01, 2000 WL 1759304 ; Yakama Compl. ¶ 254. The Portland Harbor NPL study area currently "includes the waters, bed and banks of the Willamette River from River Mile (‘RM’) 1.9 to RM 11.8, and facilities owned and/or operated by the defendants both in the Willamette River and upland areas." Yakama Compl. ¶ 45.
In 2001, the EPA issued an Administrative Order on Consent (AOC) under CERCLA, 42 U.S.C. §§ 9604, 9622(a), 9622(d)(3). Yakama Compl. ¶ 255. The AOC required each potentially responsible party to complete a Remedial Investigation and Feasibility Study (RI/FS) for the Portland Harbor Superfund Site. Yakama Compl. ¶ 255. Also in 2001, the EPA entered into a Memorandum of Understanding with Plaintiff and five other Indian tribes "to insure the tribes' participation in the RI/FS activities at Portland Harbor through funding of their CERCLA response costs." Yakama Compl. ¶ 256; Defs.' Request for Judicial Notice, Ex. H, ECF No. 203-8.
In 2002, the Portland Harbor Natural Resources Trustee Council (Trustee Council) was formed to restore natural resources that have been injured because of the release of hazardous substances by potentially responsible parties. See Portland Harbor Superfund Site, Natural Resource Damage Assessment Plan, June 1, 2010, at 1-1, ECF No. 256-9 (Trustee Council 2010 NRDA Plan). The Trustee Council included representatives of natural resource trustees: the U.S. Department of the Interior, acting through the U.S. Fish and Wildlife Service; the U.S. Department of Commerce, acting through the National Oceanic and Atmospheric Administration; the State of Oregon; the Confederated Tribes of the Grand Ronde Community of Oregon; the Confederated Tribes of Siletz Indians; the Confederated Tribes of the Umatilla Indian Reservation; the Confederated Tribes of the Warm Springs Reservation of Oregon; the Nez Perce Tribe; and Plaintiff. Trustee Council 2010 NRDA Plan at 1-1.
In 2003, Defendants "entered into a Tribal Funding Agreement for Portland Harbor with five other Indian tribes." Yakama Compl. ¶ 258. The Funding Agreement was intended "to provide for ‘direct payment by the Funding Parties to the Tribal Governments of costs not inconsistent with the NCP [National Contingency Plan] associated with the collaborative RI/FS under the AOC.’ " Yakama Compl. ¶ 258. The Funding Agreement was amended in 2004 "to include the Yakama Nation as a ‘Tribal Government’ to receive funding from the defendants for its response costs incurred in the RI/FS for the remedial action." Yakama Compl. ¶ 258.
Plaintiff alleges that it "participated in the RI/FS process and has recovered its costs incurred thereby pursuant to the Funding Agreement." Yakama Compl. ¶ 260, Plaintiff alleges that it has incurred additional response costs "related to determining the nature and extent of the defendants' releases of hazardous substances from the Portland Harbor NPL study area into downstream areas, including the Willamette River areas downstream of the Portland Harbor NPL study area, the Multnomah Channel, and the Lower Columbia River." Yakama Compl. ¶ 261.
In 2007, the EPA asked about 80 potentially responsible parties to attend a meeting to discuss a process for cooperatively allocating liability for cleanup costs. Dost Decl., Ex. D, ECF No. 198. The EPA offered to provide a neutral mediation specialist to assist the potentially responsible parties in negotiations.
Plaintiff withdrew from the Trustee Council effective June 15, 2009. Trustee Council 2010 NRDA Plan at 1-1 n.2. Plaintiff remained a natural resource trustee. Id. at 1-4.
In a letter to the Trustee Council dated June 5, 2009, Plaintiff's chairman, Ralph Sampson, Jr., explained that Plaintiff was withdrawing from the Trustee Council because the other trustees had refused to address "potential harm to juvenile salmon, other fish and natural resources in the Columbia River." Airgas Request for Judicial Notice, Ex. Q, at 1, ECF No. 203-17. Sampson wrote that to "address all potential harm to natural resources in the Columbia River," the Trustee Council should either attempt to assess all injury caused by Portland Harbor pollution, including injury to the Columbia River water and juvenile salmon, or the Trustee Council should first seek a partial settlement involving only injury to the Willamette River, while "agreeing to jointly address problems in the Columbia later." Id. at 2.
In September 2009, Plaintiff "completed a Natural Resources Injury Assessment Plan for Portland Harbor, including the Willamette River areas downstream of the Portland Harbor NPL study area, the Multnomah Channel, and the Lower Columbia River." Yakama Compl. ¶ 262. In 2012, Plaintiff completed a Preliminary Assessment for the downstream areas, which "determined that releases of hazardous substances from the Portland Harbor NPL study area into these adjacent waterways have occurred in quantities that are likely to have adversely affected and caused injury to natural resources for which [Plaintiff] is a trustee" under 42 U.S.C. § 9607(f)(1). Yakama Compl. ¶ 263. Plaintiff alleges that it "has incurred, and will continue to incur, reasonable costs necessary to assess the injury, loss or destruction of natural resources for which it is trustee." Yakama Compl. ¶ 264.
In 2009, 10 parties that had been participating in the EPA's regulatory process, including 8 of the Defendants in this action, brought an action seeking contribution from about 70 defendants for past and future investigation and cleanup costs. Arkema, Inc. v. A & C Foundry Products, Inc. , No. 3:09-cv-453-PK (Arkema ). The Arkema plaintiffs alleged that the defendants either had not participated in the voluntary settlement process or had not agreed to toll their potential claims. See Defs.' Mot. Stay 6; Dost Decl. ¶ 7. The Arkema plaintiffs alleged that they and 58 other parties that were not defendants had "agreed to participate in a voluntary non-judicial allocation process in an effort to settle claims for past and future response or remedial action costs." Arkema Compl. ¶ 83. The Arkema plaintiffs also alleged that "[a]nother 71 parties who are not defendants have agreed to toll claims pending the outcome of this non-judicial allocation process." Id.
In May 2010, this court stayed Arkema at the plaintiffs' request. Arkema , ECF Nos. 337 & 374. The Arkema stay remains in place while the potentially responsible parties, which include some of the Defendants in this action, continue to participate in "a comprehensive non-judicial allocation process to facilitate settlements among the potentially responsible parties and EPA" on response costs for the Portland Harbor Superfund Site. U.S. Mot. Dismiss/Stay 7-8.
On January 3, 2017, the EPA issued a Record of Decision (ROD) for the Portland Harbor Superfund Site. Yakama Compl. K 267. The ROD selected a remedial action that encompasses the waters, bed, and banks of the Willamette River from River Miles 1.9 to 11.8. U.S. Mot, Dismiss/Stay 6, ECF No. 253; Evraz's Request for Judicial Notice, Ex. 3 (ROD), ECF No. 263-3. The EPA estimates that preliminary planning to determine baseline sampling, and then developing remedial design plans, will take 3 to 5 years. Dost Decl., Ex. A, at 2. The subsequent remedial action, including constructing and implementing site cleanup, is expected to take about 13 years. Id.
The ROD's chosen remedial action does not include the Multnomah Channel or the Lower Columbia River. The ROD does note, however, that "[s]urface water samples collected at the downstream end of the Site (RM 2 and Multnomah Channel) showed higher concentrations of PCBs, dioxin/furans, DDx, BEHP, chlordanes, and aldrin than concentrations of these contaminants entering the Site from upstream, This pattern indicates that contamination from the Site is being transported to the Columbia River." ROD § 6.6.3.
Plaintiff filed this action in January 2017. ECF No. 1. Plaintiff filed the second amended complaint in August 2017. In its first claim, Plaintiff seeks to recover its response costs, alleging that as of September 30, 2016, it had incurred $283,471,96 in unreimbursed response costs. Yakama Compl. ¶¶ 269-73. In its second claim, Plaintiff seeks declaratory relief on Defendants' liability for (1) future response costs; and (2) reasonable costs of assessing natural resource damages. Yakama Compl. ¶¶ 276-77.
DISCUSSION
I. Motions to Dismiss for Failure to State a Claim
A. Legal Standards for Motions to Dismiss under Rule 12(b)(6)
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). To show plausibility, the plaintiff must do more than show "a sheer possibility that a defendant has acted unlawfully," Id. A complaint that pleads facts that are " ‘merely consistent’ with a defendant's liability, ... ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’ " Id. (citations omitted).
The court is not required to accept a complaint's legal conclusions. Id. "Dismissal is proper when the complaint does not make out a cognizable legal theory or does not allege sufficient facts to support a cognizable legal theory." Chubb Custom Ins. Co. v. Space Sys./Loral Inc. , 710 F.3d 946, 956 (9th Cir. 2013).
B. United States' Motion to Dismiss Plaintiff's Declaratory Relief Claim for Natural Resource Damage Assessment Costs
Plaintiff's second claim seeks "a declaratory judgment of liability for future costs of response and the reasonable costs of assessing damages for the injury, destruction, and loss of natural resources resulting from ... releases at and from Portland Harbor." Second Am. Compl, ¶ 1 (emphasis added). The United States moves to dismiss the portion of Plaintiff's second claim that seeks declaratory relief on reasonable costs incurred by Plaintiff for assessing natural resource damages. U.S. Mot. Dismiss/Stay, ECF No. 253. The United States argues that the relevant statutes and implementing regulations require that a party may seek costs of a natural resource damage assessment only when combined with a claim for natural resource damages.
Defendant EVRAZ Inc. NA (Evraz) joins in the United States' motion to dismiss but not the motion to stay. Joinder, ECF No. 269. Most of the other Defendants oppose the United States' Motion to Dismiss and Stay. U.S. Mot. Dismiss/Stay 2; cf. Union Pac. R.R.'s Reply 3-4 n.1, ECF No. 285 (agreeing with dismissal but not stay). Defendant Northwest Pipe Co. opposes the motion to stay and reserves its position on the motion to dismiss. Defendants City of Portland, Northwest Natural Gas, and Port of Portland, which have filed their own Motion for Stay, ECF No. 197, reserve their positions on the United States' motions to dismiss and stay.
1. Statutory Background
"CERCLA is a comprehensive statute that grants the President broad power to command government agencies and private parties to clean up hazardous waste sites." Key Tronic Corp. v. United States , 511 U.S. 809, 814, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994). As part of the cleanup process, CERCLA "imposes strict liability" on potentially responsible parties, or PRPs. Burlington N & Santa Fe Ry. v. United States , 556 U.S. 599, 608-09, 129 S.Ct. 1870, 173 L.Ed.2d 812 (2009). CERCLA identifies four types of potentially responsible parties: (1) owners and operators of vessels or facilities; (2) former owners and operators of a facility when a hazardous substance was disposed of; (3) persons who arranged the disposal or treatment of hazardous substances, or the transport of hazardous substances for disposal or treatment; and (4) persons who accept hazardous substances for transport to disposal or treatment facilities, from which a release of hazardous substances occurred. 42 U.S.C. § 9607(a)(1)-(4). CERCLA defines "facility" broadly:
CERCLA recognizes three defenses to liability: when the release of hazardous substance and resulting damages "were caused solely by (1) an act of God; (2) an act of war; (3) an act or omission of a third party ... or (4) any combination of the foregoing paragraphs." 42 U.S.C. § 9607(b).
The term "facility" means (A) any building, structure, installation, equipment,
pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in consumer use or any vessel.
CERCLA imposes liability on potentially responsible parties for
(A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan;
(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan;
(C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release; and
(D) the costs of any health assessment or health effects study carried out under section 9604(I) of this title.
CERCLA defines "natural resources" as
land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States, ..., any State or local government, any foreign government, any Indian tribe, or, if such resources are subject to a trust restriction on alienation, any member of an Indian tribe.
42 U.S.C. § 9601(16). CERCLA defines damage to natural resources as "damages for injury or loss of natural resources as set forth in section 9607(a) or 9611(b) of this title." 42 U.S.C. § 9601(6). A party's liability for damages to natural resources is either to the United States, a state, or an Indian tribe, which are the sovereign entities CERCLA authorizes to bring actions to collect natural resource damages. Id. § 9607(f)(1).
2. Discussion
Plaintiff seeks a declaratory judgment on Defendants' liability for the costs of Plaintiff's natural resource damage assessments (also referred to as NRDA costs). Plaintiff does not seek natural resource damages (also referred to as NRD).
The United States focuses on § 9607(a)(4)(C), which imposes liability for "damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release." The United States contends that because § 9607(a)(4)(C) provides that natural resource damages include the costs of assessing natural resource damages, Plaintiff cannot bring a claim for assessment costs without also bringing a claim for natural resource damages. The United States argues that "although the statute expressly authorizes the recovery of assessment costs as part of a claim for damages, it does so only as a part of a larger whole." U.S. Mot. Dismiss/Stay 11; see New York v. Next Millennium Realty , 160 F. Supp. 3d 485, 522 (E.D.N.Y. 2016) ( § 9607(a)(4)(C)'s use of the word "including" means that "the reasonable costs of assessing the injury to natural resources are contained as part of the natural resource damages").
The United States argues that the relevant regulations support its interpretation of § 9607(a)(4)(C). A regulation entitled, "What damages may a trustee recover?" provides that in claims for natural resource damages under § 9607(f) :
(a) a natural resource trustee who has performed an assessment in accordance with this rule may recover:
(1) Damages as determined in accordance with this part and calculated based on injuries occurring from the onset of the release through the recovery period, less any mitigation of those injuries by response actions taken or anticipated, plus any increase in injuries that are reasonably unavoidable as a result of response actions taken or anticipated;
(2) The costs of emergency restoration efforts under § 11.21 of this part;
(3) The reasonable and necessary costs of the assessment, to include:
(I) The cost of performing the preassessment and Assessment Plan phases and the methodologies provided in Subpart D or E of this part; and
(ii) Administrative costs and expenses necessary for, and incidental to, the assessment, assessment planning, and restoration, rehabilitation, replacement, and/or acquisition of equivalent resources planning, and any restoration, rehabilitation, replacement, and/or acquisition of equivalent resources undertaken; and
(4) Interest on the amounts recoverable as set forth in section 107(a) of CERCLA.
....
(b) The determination of the damage amount shall consider any applicable limitations provided for in section 107(c) of CERCLA.
(c) Where an assessment determines that there is, in fact, no injury, as defined in § 11.62 of this part, the natural resource trustee may not recover assessment costs.
(d) There shall be no double recovery under this rule for damages or for assessment costs, that is, damages or assessment costs may only be recovered once, for the same discharge or release and natural resource, as set forth in section 107(f)(1) of CERCLA.
(e) Actions for damages and assessment costs shall comply with the statute of limitations set forth in section 113(g), or, where applicable, section 126(d) of CERCLA.
43 C.F.R. § 11.15. The regulations include assessment costs as one type of damage the trustee may recover. The regulations also provide that NRDA costs cannot be determined without referring to NRD because the trustee "may not recover assessment costs" if the assessment finds no injury to natural resources. 43 C.F.R. § 11.15(c). Furthermore, the regulation defining reasonable costs of assessment provides:
"Reasonable cost" means the amount that may be recovered for the cost of performing a damage assessment. Costs are reasonable when: the Injury Determination, Quantification, and Damage Determination phases have a well-defined relationship to one another and are coordinated; the anticipated increment of extra benefits in terms of the precision or accuracy of estimates obtained by using a more costly injury, quantification, or damage determination methodology are greater than the anticipated increment of extra costs of that methodology; and the anticipated cost of the assessment is expected to be less than the anticipated damage amount determined in the Injury, Quantification, and Damage Determination phases.
43 C.F.R. § 11.14(ee). The regulation's definition of "reasonable cost" indicates that the reasonableness of assessment costs is linked to the "anticipated damage amount" determined by the assessment. Plaintiff responds it has prevailed on this issue in prior litigation against the United States in Confederated Tribes & Bands of the Yakama Nation v. United States , 616 F. Supp. 2d 1094 (E.D. Wash. 2007) (Confederated Tribes ), a CERCLA action concerning the Hanford Nuclear Reservation. There, the district court ruled that Plaintiff could bring a claim for NRDA costs separately from a claim for NRD. The Confederated Tribes court held:
I note in Confederated Tribes , Plaintiff brought separate claims for natural resource damages and for assessment costs, but the court had stayed the claim for natural resource damages. 616 F. Supp. 2d at 1095. Here, Plaintiff has not brought a claim for natural resource damages.
Despite the fact that injury assessment costs are included in 42 U.S.C. § 9607(a)(4)(C) along with natural resource damages, this court concludes there is a clear common sense distinction between the two. Simply put, "costs" are intended to reimburse a party for certain expenses incurred by it, whereas "damages" are intended to compensate a party for an injury or a loss. In the context of § 9607(a)(4)(C), this means that injury assessment costs reimburse a party for costs incurred in determining the extent of an injury (a damages assessment), whereas damages compensate for the injury (the loss) itself in order to make the party whole. This plain meaning is evident from the plain language of § 9607(a)(4)(C), as well as the plain language of (a)(4)(A), (B), (C), and (D), all of which refer to categories of costs.
While 42 U.S.C. § 9601 contains a definition of "damages," it does not contain a definition of "costs." § 9601(6) states that the term "damages" means "damages for injury or loss of natural resources as set forth in section 9607(a) or 9611(b) of this title." This definition, however, does not suggest in the slightest that the injury assessment costs referred to in § 9607(a)(4)(C) constitute a component of the "damages" referred to in that provision. Indeed, § 9611(b), makes clear the obvious distinction between "costs" and "damages." It authorizes assertion of certain claims against the Hazardous Substance Superfund including those "for injury to, or destruction or loss of, natural resources, including costs for damage assessment." § 9611(b)(1). Among those authorized to assert such claims are States and Indian tribes. § 9611(b)(2)(A) provides that "[n]o natural resource claims may be paid from the Fund unless the President determines that the claimant has exhausted all administrative and judicial remedies to recover the amount of such claim from persons who may be liable under section 9607 of this title." § 9611(b)(2)(B) defines "natural resource claim" as "any claim for injury to, or destruction of, or loss of, natural resources" and specifies that "[t]he term does not include any claim for the costs of natural resource damage assessment."
Id. at 1097-98. The court concluded that a claim to recover the costs of assessing natural resource damages under § 9607(a)(4)(C) "is ripe when such costs are incurred." Id. at 1099.
Plaintiff argues that this court should adopt the reasoning of Confederated Tribes and hold that assessment costs are separate from natural resource damages, despite § 9607(a)(4)(C)'s inclusion of assessment costs as part of natural resource damages. The parties have not cited any other decisions directly on point. A few decisions have discussed Confederated Tribes , in particular Next Millennium , 160 F. Supp. 3d 485, and Quapaw Tribe of Okla. v. Blue Tee Corp. , No. 03-cv-0846-CVE-PJC, 2008 WL 2704482 (N.D. Okla. July 7, 2008). While I agree with Plaintiff that neither decision is directly on point, Next Millennium does contain a useful discussion of § 9607(a)(4). See 160 F. Supp. 3d at 522.
The Confederated Tribes court cited 42 U.S.C. § 9611(b) as a CERCLA provision that made "the obvious distinction between ‘costs’ and ‘damages.’ " 616 F. Supp. 2d at 1098. However, while § 9611 does distinguish natural resource damages from assessment costs, it does so solely in the context of claims against the Superfund. For claims against the Superfund, the claimant must exhaust remedies before recovering natural resource damages, but is not required to exhaust remedies before recovering assessment costs. I agree with the United States that § 9611 does not help Plaintiff here because the statute addresses only "the special circumstances of funding certain claims for natural resource damages under the Clean Water Act from the Superfund." U.S. Mot. Dismiss/Stay 12 (citing 42 U.S.C. § 9611(b)(2)(B) ). Section 9611 shows that Congress could distinguish NRDA costs from NRD, but chose to do so only in the context of claims against the Superfund, which are not at issue here. See Next Millennium , 160 F. Supp. 3d at 522 (under the principle of exressio unius est exclusio alterius , the court may presume that Congress acts intentionally when it chooses to include particular wording in one section of a statute while excluding that wording in another section of the same Act) (citing Russello v. United States , 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) ).
The Confederated Tribes court also relied on its interpretation of 42 U.S.C. § 9613(g)(2), which addresses the timing of an action for "recovery of costs." 616 F. Supp. 2d at 1099. The court focused on § 9613(g)(2)'s provision that an action to "recover further response costs" "may be commenced at any time after such costs have been incurred." However, in context, the phrase "such costs" refers to response costs, not to costs generally. U.S. Mot. Dismiss/Stay 11 (citing California v. Neville Chem. Co. , 358 F.3d 661, 668 n.4 (9th Cir. 2004) (in construing § 9613(g)(2), the court noted that "[a]s soon as the Department expended its first dollar, it could have sued Neville for this dollar and sought a declaratory judgment of Neville's liability for future response costs.")).
After concluding that NRDA costs were neither response costs nor damages, the Confederated Tribes court determined although § 9613(g)(2) authorized declaratory relief for only response costs and damages, a plaintiff could still seek declaratory relief for NRDA costs based on the Declaratory Judgment Act, 28 U.S.C. §§ 2201 -02. 616 F. Supp. 2d at 1100. However, after Confederated Tribes was decided, the Ninth Circuit concluded that § 9613(g)(2), as the "more detailed declaratory judgment provision," preempted the more general Declaratory Judgment Act in this context. City of Colton v. Am. Promotional Events, Inc.-West , 614 F.3d 998, 1007 (9th Cir. 2010). Here, Plaintiff does not rely on the Declaratory Judgment Act.
Plaintiff argues that the United States' statutory interpretation would frustrate Congress's "intent of integrating response and NRD ... if the polluting parties ultimately responsible for paying NRDA costs can insist on waiting until after the response decisions have been made, all assessment costs are expended, and NRDA is completed before shouldering their responsibilities." Pl.'s Resp. 12. However, the statutes and regulations allow NRDA costs to be based on not just actual damages but also anticipated damages, as determined by an initial assessment. See 43 C.F.R. § 11.14(ee) (reasonable assessment costs may be based on anticipated damages). Conversely, the statutory scheme, as implemented by the regulations, seeks to prevent trustees from recovering assessment costs without at least estimating the amount of damages.
I conclude that CERCLA does not permit a natural resource trustee to seek assessment costs without also bringing a claim for natural resource damages. Although the Confederated Tribe court's distinction between costs and damages appears logical, the distinction ignores § 9607(a)(4)(C)'s definition of natural resource damages to include assessment costs. I agree with the United States that because determining whether assessment costs are reasonable depends on the "anticipated and actual quantum of damages," this court cannot "separate the adjudication of a claim for assessment costs from the adjudication of the quantum of the damage amount." U.S. Mot. Dismiss/Stay 12. Plaintiff's claim for declaratory relief on Defendants' liability for assessment costs should be dismissed without prejudice. Plaintiff should be allowed to file an amended complaint, and Defendants should then be allowed to file motions to dismiss.
C. BNSF Railway's Motion to Dismiss for Failure to State a Claim
Defendant BNSF Railway Co. moves to dismiss Plaintiff's claims for response costs and for NRDA costs, arguing under Rule 12(b)(6) that Plaintiff has failed to state a claim. ECF No. 257. BNSF's motion is joined in whole or part by Defendants Northwest Pipe Co., ECF No. 258, Union Pacific Railroad Co., ECF No. 259, and Sulzer Pumps (US) Inc., ECF No. 260.
1. Response Costs Claim
To establish a claim for response costs under CERCLA, a governmental entity such as Plaintiff must show that (1) the defendant "falls within one of the four classes of PRPs [potentially responsible parties]" listed in § 9607(a) ; (2) "the site on which hazardous substances are found is a ‘facility’ within the meaning of" § 9601(9) ; (3) "a ‘release or ‘threatened release’ of a hazardous substance from the facility has occurred"; (4) Plaintiff "has incurred costs responding to the release or threatened release"; and (5) "those costs are ‘not inconsistent with the national contingency plan,’ which is assumed to be the case absent a defendant's proof to the contrary." Pakootas v. Teck Cominco Metals, Ltd. , 905 F.3d 565, 576 (9th Cir. 2018).
In contrast, CERCLA requires that private parties show their response costs are "necessary" and "consistent with the national contingency plan." 42 U.S.C. § 9607(a)(4) & (a)(4)(B).
Defendants contend that Plaintiff fails to sufficiently allege these elements of a claim for response costs. I disagree.
I find that Plaintiff's allegations as to each Defendant are sufficient at this stage of the pleadings to state claims for response costs. For example, as to BNSF, Plaintiff alleges, in part, that BNSF "owns and operates multiple sites with railroad and industrial operations throughout the Portland Harbor site, including 3500-2900 NW Yeon Avenue (‘Lake Yard site’), 4150 and 4155 NW Yeon Avenue (‘McWhorter site’), and 6330-6346 NW St Helens Rd (‘Doane Lake Study Area site’)." Yakama Compl. ¶ 62. Plaintiff alleges that each of these BNSF sites is a "facility" for purposes of CERCLA liability. As to the Doane Lake Study Area site, Plaintiff alleges in part that BNSF
owned and operated the Doane Lake property located within the Doane Lake Study Area site since at least 1908, and is still the current owner..... During the time that BNSF has owned and operated [areas] within the Doane Lake Study Area site, releases of hazardous substances have occurred. From the
1920s to the 1940s, heavy industries were developed along the shores, filling in most of the remnants of Doane Lake, often with hazardous substances. Disposal of hazardous wastes continued into the 1980s. Contaminated water and sediments have been directly discharged into the Willamette River from Doane Lake. Contamination at the site has also contaminated groundwater which discharges to the Willamette River. Operations surrounding the site, including battery breaking, lead smelting, agricultural chemical production, and landfilling, resulted in the release of hazardous substances. Operations at the site have resulted in contamination in soils, groundwater, stormwater, surface waters and sediments.
Yakama Compl. ¶¶ 66, 67. Plaintiff makes similar allegations about BNSF's alleged releases as to the other two BNSF sites. Yakama Compl. ¶¶ 63, 64, 65 (Lake Yard site); 70-74 (McWhorter site).
Plaintiff's allegations against the other Defendants are similarly detailed. At this stage of the pleadings, I conclude that Plaintiff's allegations as to response costs are sufficient.
The parties dispute whether CERCLA requires a showing of causation to establish a claim for response costs. I agree with Plaintiff that a trustee seeking response costs must show only that it has incurred costs responding to a release or threatened release of a hazardous substance. Pakootas , 905 F.3d at 576. In contrast, to recover natural resource damages, the trustee must show that the injury to natural resources resulted from the release or threatened release. Id. In any event, Plaintiffs allegations as to response costs at this stage of the litigation are adequate. I conclude Plaintiff has adequately pleaded claims for response costs incurred against Defendants.
2. Declaratory Relief Claim for NRDA Costs
To establish a claim for natural resource damages, Plaintiff must show the first three elements of a claim for response costs, as explained above, and the following two elements: (4) "natural resources under the plaintiff's trusteeship have been injured and (5) the injury to natural resources ‘result[ed] from’ the release or threatened release of the hazardous substance." Pakootas , 905 F.3d at 576 (quoting 42 U.S.C. § 9607(a)(4)(C) ). As discussed above, Plaintiff has not asserted a claim for natural resource damages. I need not address the sufficiency of a claim that Plaintiff has not pleaded.
D. Defendants' Motions to Dismiss NRDA Cost Claim as Untimely
Defendant Exxon-Mobil, joined by other Defendants, and Defendants NW Natural, City of Portland, and Port of Portland, have filed separate motions to dismiss Plaintiff's claim for NRDA costs as untimely. ECF Nos. 255, 263. When ruling on a Rule 12(b)(6) motion to dismiss based on the affirmative defense of the statute of limitations, the court may dismiss only if "the running of the statute is apparent on the face of the complaint." Huynh v. Chase Manhattan Bank , 465 F.3d 992, 997 (9th Cir. 2006).
Defendants do not contend that Plaintiff's claims for response costs are not timely. See Hr'g Tr. (Tr.) 40-41. For this discussion of the applicable statute of limitations, 1 treat Plaintiff's claim for NRDA costs as though it includes a claim for natural resource damages.
The timeliness of Plaintiff's claim for natural resource damages depends on whether the alleged damages occurred outside of the Portland Harbor NPL site, as Defendants argue, or inside the site, as Plaintiff argues. The United States opposes Defendants' motions to dismiss, arguing that "the boundaries of the NPL Site are not yet fixed." U.S. Opp'n 6, ECF No. 271. I agree with the United States that Defendants' motion is premature.
Generally, a plaintiff must bring a claim for natural resource damages within three years of the plaintiff's "discovery of the loss and its connection with the release in question." 42 U.S.C. § 9613(g)(1) (A) ; United States v. Asarco, Inc. , 214 F.3d 1104, 1105 (9th Cir. 2000). Here, Defendants argue that Plaintiff's NRD claim is not timely because Plaintiff knew of the alleged natural resource damage by 2009, more than three years before filing this action in 2017. At the motions hearing, counsel for NW Natural argued that during the years following the initial listing in 2000, Plaintiff participated with the EPA in studying the Portland Harbor site, so Plaintiff "knew that no sampling was being done in the areas in which it now seeks NRD. [Plaintiff] knew that ... none was contemplated." Tr. 50. Defendants argue that by 2009, when Plaintiff withdrew from the Trustee Council because Plaintiff believed areas downstream from River Mile 1.9 should have been included in the process, Plaintiff knew it was seeking natural resource damages outside of the Portland Harbor site, and therefore that the claim was subject to the three-year statute of limitations. As evidence of Plaintiff's knowledge, Defendants note that in September 2009, Plaintiff "completed a Natural Resources Injury Assessment Plan for Portland Harbor, including the Willamette River areas downstream of the Portland Harbor NPL study area, the Multnomah Channel, and the Lower Columbia River." Yakama Compl. ¶ 262. Defendants also contend the 2017 ROD effectively set the boundaries of the Portland Harbor site between Willamette River Miles 1.9 and 11.8, thereby excluding the downstream areas where Plaintiff claims natural resource damages have occurred. While acknowledging that the EPA has discretion to change the boundaries, Defendants argue that as of now, the downstream areas are not included in the Portland Harbor NPL site.
Plaintiff responds that CERCLA's general three-year statute of limitations does not apply because the alleged natural resource damages occurred "with respect to [a] facility listed on the National Priorities List." 42 U.S.C. § 9613(g)(1). For such claims, CERCLA provides that "an action for damages under this chapter must be commenced within 3 years after the completion of the remedial action (excluding operation and maintenance activities)." Id. CERCLA also provides that a plaintiff may not bring a claim for natural resource damages occurring within an NPL-listed facility "(1) prior to 60 days after the Federal or State natural resource trustee provides to the President and the potentially responsible party a notice of intent to file suit, or (ii) before selection of the remedial action if the President is diligently proceeding with a remedial investigation and feasibility study." Id. Plaintiff contends that the statute of limitations for NPL facilities applies here because the alleged natural resource damages, including those damages occurring downstream from River Mile 1.9, stem from Defendants' releases of hazardous substances within the NPL facility. Plaintiff also contends that under § 9613(g)(1)(ii), Plaintiff could not have brought the NRD claim until 2017, when the ROD selected the remedial action. Id. (claim for NRD may not be brought "before selection of the remedial action").
In opposing the motions to dismiss, the United States responds that Defendants incorrectly assume that the boundaries of the NPL site have been set sufficiently to determine which of the two possible CERCLA statutes of limitations applies here. U.S. Opp'n 6. The United States argues that Plaintiff's NRD claim "arises from releases of hazardous substances within the area of current active remedial investigation, and the scope of an NPL site may extend to wherever the EPA finds hazardous substances from the listed releases have come to be located." U.S. Opp'n 3-4. CERCLA defines "facility" broadly to include "any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located." 42 U.S.C. § 9601(9). Courts accordingly have construed the term "facility" broadly. United States v. Bestfoods , 524 U.S. 51, 56, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998) ("the term ‘facility’ enjoys a broad and detailed definition"); California v. Blech , 976 F.2d 525, 527 (9th Cir. 1992) (per curiam); Uniroyal Chem. Co. v. Deltech Corp. , 160 F.3d 238, 245 (5th Cir. 1998) ("facility is defined in the broadest possible terms, encompassing far more than traditional waste sites"); Sierra Club v. Seaboard Farms , 387 F.3d 1167, 1174 (10th Cir. 2004) ("the circuits that have applied the defined term ‘facility’ have done so with a broad brush"). In keeping with CERCLA's remedial purpose, the EPA may revise facility boundaries "at any time" "as it acquires more information about the extent and severity of the contamination." Asarco , 214 F.3d at 1106. The identification of the site boundaries "continues through completion of remedial work." U.S. Opp'n 8 (citing Asarco , 214 F.3d at 1106 n.3 (discussing EPA policy) ).
Here, the EPA's NPL listing explained that "it may be impossible to discover the full extent of the areas where contamination has come to be located until after all studies and remedial work are complete." U.S. Opp'n 7 (citing 65 Fed. Reg. at 75181 ). The 2017 ROD notes elevated levels of hazardous substances in the Multnomah Channel downstream from River Mile 1.9, and sets a goal of reducing loadings to the Multnomah Channel and the Columbia River. U.S. Opp'n 7. I conclude that Defendants are incorrect that the site boundaries are sufficiently established to show that Plaintiff is claiming natural resource damages for areas outside the Portland Harbor site. On this record, and in light of the CERCLA's broad definition of "facility," I conclude that this court cannot definitively determine whether the alleged natural resource damages occurred inside or outside of the Portland Harbor site, and therefore cannot determine which statute of limitations to apply. I conclude that Defendants' motions to dismiss based on the CERCLA statute of limitations are premature and must be denied.
II. Motions to Dismiss for Lack of Standing
A. Plaintiffs Standing Under Article III
Defendants BNSF, NW Pipe, and Union Pacific argue that Plaintiff has not sufficiently pleaded that it has standing under Article III of the Constitution. Plaintiff responds that it has sufficiently alleged that it incurred response costs, and that injuries have occurred to natural resources for which it is a trustee.
1. Elements of Article III Standing
To have standing under Article III, a plaintiff must establish that
(1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. , 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). "At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we ‘presum[e] that general allegations embrace those specific facts that are necessary to support the claim.’ " Lujan v. Defenders of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (alteration in original) (quoting Lujan v. Nat'l Wildlife Fed'n , 497 U.S. 871, 889, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) ). If a plaintiff fails to show Article III standing at the pleading stage, the court must dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Warren v. Fox Family Worldwide, Inc. , 328 F.3d 1136, 1140 (9th Cir. 2003).
2. Discussion
As to Plaintiff's claims for already incurred and prospective response costs, 1 conclude that Plaintiff has shown Article III standing. Plaintiff alleges it has incurred response costs. Yakama Compl. ¶ 270. "A plaintiff who has incurred response costs covered under CERCLA has suffered a sufficient injury to meet the minimum Article III threshold for an injury in fact." City of Lake Elmo v. 3M Co. , 237 F. Supp. 3d 877, 884 (D. Minn. 2017) ; Rolan v. Atl. Richfield Co. , No. 1:16-cv-357-TLS, 2017 WL 3191791, at *5 (N.D. Ind. July 26, 2017) (finding plaintiffs' allegations that "they have incurred response costs in the form of relocation services and the inability to enjoy their land ... sufficient for purposes of an Article III injury").
Plaintiff has also alleged that the response costs are traceable to Defendants' releases of hazardous substances. Yakama Compl. ¶¶ 257-261. "To survive a motion to dismiss for lack of constitutional standing, plaintiffs must establish a ‘line of causation’ between defendants' action and their alleged harm that is more than ‘attenuated.’ " Maya v. Centex Corp. , 658 F.3d 1060, 1070 (9th Cir. 2011) (footnote omitted) (quoting Allen v. Wright , 468 U.S. 737, 757, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) ). Accordingly, "[a] causal chain does not fail simply because it has several ‘links,’ provided those links are ‘not hypothetical or tenuous’ and remain ‘plausibi[le].’ " Id. (quoting Nat'l Audubon Soc'y, Inc. v. Davis , 307 F.3d 835, 849 (9th Cir. 2002) (alterations in Maya )). In Rolan , the court ruled that the plaintiffs had shown Article III standing as to response costs, explaining, "CERCLA imposes joint and several liability upon responsible actors. For instance, if one party sends a single barrel of hazardous substances to a remediation site that includes 100 barrels, that one party could be held liable for the entirety of relevant CERCLA liability." Rolan , at *5,. Here, I conclude Plaintiff has sufficiently alleged that it has incurred response costs traceable to Defendants' conduct.
It is undisputed that Plaintiff's alleged injury would be redressed by a favorable decision. I conclude that Plaintiff has adequately pleaded Article III standing as to its claims for response costs.
As to Plaintiff's claim for NRDA costs, I need not address whether Plaintiff has shown Article III standing because Plaintiff has not pleaded a claim for natural resource damages.
B. Plaintiff's Statutory Standing as a Natural Resources Trustee
Defendant Union Pacific argues that Plaintiff lacks standing under CERCLA to seek natural resource damages as a trustee. Defendants' motion to dismiss for lack of statutory standing is under Federal Rule of Civil Procedure 12(b)(6), so I take Plaintiff's pleadings as true in determining standing. See Maya , 658 F.3d at 1067 ("lack of statutory standing requires dismissal for failure to state a claim" under Rule 12(b)(6) ). CERCLA defines natural resources as "land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by ... any Indian tribe." 42 U.S.C. § 9601(6). Union Pacific contends that Plaintiff's off-reservation fishing rights do not give Plaintiff the ability to act as a natural resource trustee here because fishing rights are not a "natural resource" as defined by CERCLA. Union Pac.'s Reply 7-9, ECF No. 285. Union Pacific contends that fishing rights are "a tribe's right to enjoyment of a resource," which "is nothing more than an assertion that it has a legally-recognized right to try and enjoy a certain natural resource: fish." Union Pac. Reply 7 (footnote omitted).
In response, Plaintiff cites allegations in its complaint in support of its ability to act as a natural resource trustee:
The Yakama Nation has participated in numerous activities relating to the protection and restoration of anadromous fish stocks and other aquatic resources passing through its treaty-reserved "usual and accustomed fishing places" on the Columbia River and its tributaries, including the Lower Willamette River and Multnomah Channel. These activities include fish habitat restoration efforts, many of which are detailed in the Columbia Basin Fish Accords ; participation in the ongoing processes for the development of Recovery Plans for listed salmon and steelhead under the Endangered Species Act; development and implementation of fishing management plans as a party to U.S. v. Oregon ; implementation of the Pacific Salmon Treaty through participation in the Pacific Salmon Commission processes (see 16 U.S.C. 3631, et seq. ); and participation in a variety of other policy and technical committees and organizations dealing with issues related to the protection and rebuilding of salmon, steelhead, lamprey, and other species throughout the Columbia River basin.
Yakama Compl. ¶ 5. Plaintiff argues that fishing rights fit within CERCLA's definition of natural resources because the fish at issue are natural resources "belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by ... any Indian tribe." 42 U.S.C. § 9601(6). Plaintiff also notes that liability for natural resource damages is "to any Indian tribe for natural resources belonging to, managed by, controlled by, or appertaining to such tribe, or held in trust for the benefit of such tribe." 42 U.S.C. § 9607(f)(1). Based on these statutory definitions, Plaintiff argues that its fishing rights establish "that it has some management or control over natural resources in the geographic area at issue, or that those resources appertain to it." Pl.'s Mem, Surreply 7.
The parties did not cite, and I did not find, any controlling authority. A recent article on the issue noted that "[a]lthough there is no case law on point, an argument can be made that a tribe that holds protected treaty-reserved rights – for example, to hunt, fish, and gather – on off-reservation ceded lands would have authority (via the tribal trustee) to assert trusteeship over such off-reservation lands to assess and recover NRDs under CERCLA or OPA, because the resources continues [sic ] to be one ‘belonging to, managed by, controlled by, or [at least] appertaining to such tribe.’ " Adam S. Cohen, Mave A. Gasaway, The Role of Indian Tribes in Recovering Natural Resource Damages under CERCLA and the Oil Pollution Act , Indian Law and Natural Resources: The Basics and Beyond 9-23 (2017) (quoting 42 U.S.C. § 9607(f)(1) (second brackets in text)). The article cites a leading treatise on Indian law, which states that resources managed by, controlled by, or appertaining to the tribe " ‘may include not only resources held in trust or restricted status for tribal members, but additional resources over which the tribe exercises governmental control’ or areas on which ‘tribes retain usufructuary rights outside reservation boundaries ....’ " Id. (quoting Cohen, Handbook of Federal Indian Law § 10:05[3] at 804). I find this reasoning persuasive in resolving the issue of Plaintiff's trusteeship. Because Plaintiff holds off-reservation treaty fishing rights, under § 9607(f)(1) salmon and other fish in the Lower Willamette River, the Multnomah Channel, and the Columbia River are managed by or appertain to Plaintiff. Plaintiff therefore has statutory standing as a trustee to bring a claim for natural resource damages.
III. Motion to Dismiss for Failure to Join Necessary Parties (NRDA Cost Claim Only)
Defendants contend that Plaintiff's NRDA cost claim must be dismissed because Plaintiff has failed to join the other natural resources trustees for the Portland Harbor Site, which Defendants contend are necessary parties under Federal Rule of Civil Procedure 19. A party may move to dismiss for "failure to join a party under Rule 19." Fed. R. Civ. P. 12(b)(7).
Plaintiff and the United States oppose these motions to dismiss, contending that CERCLA allows co-trustees to bring separate actions for natural resource damages without joining other trustees. I agree.
Here, while there is substantial overlap in trusteeship between Plaintiff and the other trustees, joint trusteeship over multiple natural resources by more than one trustee is a "core element of natural resource damages law." U.S. Opp'n 9; Coeur d'Alene Tribe v. Asarco Inc. , 280 F. Supp. 2d 1094, 1115 (D. Idaho 2003) (Coeur d'Alene I ) (noting that "in many instances, co-trustees are the norm and not the exception"), modified on reconsideration, United States v. Asarco Inc. , 471 F. Supp. 2d 1063, 1068 (D. Idaho 2005) (Coeur d'Alene II ). The court in Coeur d'Alene I explained that "the law clearly anticipates" co-trustees of natural resources "as the only feasible way" the system could work because "[t]he migration of bids and fish from one area to another and the use of habitat as they move demonstrate that our natural resources are not static to one area." Id. at 1116.
The United States notes that Defendants' briefs variously assert that there are "nine, ten, or eleven" trustees, depending on whether the States of Washington or Idaho are trustees. U.S. Opp'n 9 n.7.
A. Legal Standards for Rule 19 Motions to Dismiss
Rule 19(a) defines when a party is a "required party":
A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:
(A) in that person's absence, the court cannot accord complete relief among existing parties; or.
(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may:
(i) as a practical matter impair or impede the person's ability to protect the interest; or
(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.
The court looks to three factors in determining whether dismissal is appropriate under Rule 12(b)(7) for failure to join a party:
1. Is the absent party necessary (i.e., required to be joined if feasible) under Rule 19(a) ?
2. If so, is it feasible to order that the absent party be joined?
3. If joinder is not feasible, can the case proceed without the absent party, or is the absent party indispensable such that the action must be dismissed?
Salt River Project Agric. Imp. and Power Dist. v. Lee , 672 F.3d 1176, 1179 (9th Cir. 2012).
B. Discussion
I agree with Plaintiff and the United States that the other natural resource trustees are not necessary parties to Plaintiff's claim for natural resource damages. Although CERCLA does not expressly allow trustees to bring separate actions for natural resource damages, CERCLA does so by implication through its prohibition against trustees receiving a double recovery of natural resource damages, which ensures that defendants are not forced to pay the same damages to more than one trustee. 42 U.S.C. § 9607(f)(1). Section 9607(f)(1) provides, "There shall be no double recovery under this chapter for natural resource damages, including the costs of damage assessment or restoration, rehabilitation, or acquisition for the same release and natural resource." The corresponding regulation explains, "damages or assessment costs may only be recovered once, for the same discharge or release and natural resource." 43 C.F.R. § 11.15(d). If CERCLA did not permit a trustee to claim natural resource damages without joining co-trustees, then there would be no need to prohibit double recoveries. The court in Coeur d'Alene II explained,
The language of the statute dictates that a co-trustee acting individually or collectively with the other co-trustees may go after the responsible party or parties for the full amount of the damage, less any amount that has already been paid as a result of a settlement to another trustee by a responsible party. If there is a later disagreement between the co-trustees, that disagreement would have to be resolved by successive litigation between the trustees, but it could in no way affect the liability of the responsible party or parties.
I agree with Plaintiff that the principal decision cited by Defendants, Oklahoma v. Tyson Foods, Inc. , 258 F.R.D. 472 (N.D. Okla. 2009), is distinguishable because it concerned claims under both state law and CERCLA. See id. at 480 (noting CERCLA's prohibition of double recovery "does not prevent double recovery of monetary damages sought under other state law claims"). I conclude that Defendants' motions to dismiss based on Plaintiff's failure to join other trustees should be denied because the other trustees are not necessary parties.
I agree with the United States that the Tyson Foods decision erred in ruling that to avoid double recovery or unjust enrichment of one trustee at the expense of another trustee, courts should award damages " ‘in the ratio or percentage of actual management and control that is exercised by each of the various co-trustees.’ " 258 F.R.D. at 480 (quoting Coeur d'Alene Tribe v. Asarco Inc. , 280 F. Supp. 2d 1094, 1116 (D. Idaho 2003) (Coeur d'Alene I )). In Coeur d'Alene II , the district court reconsidered its ruling in Coeur d'Alene I and concluded that there was no need for an allocated trusteeship because of the prohibition on double recovery. 471 F. Supp. 2d at 1068. The Tyson Foods decision did not cite Coeur d'Alene II.
IV. Motions to Stay
Defendants NW Natural, City of Portland, and Port of Portland (Moving Defendants) have jointly moved to stay this action after the court rules on the pending motions to dismiss. ECF No. 197. Moving Defendants argue that this action "threatens to swallow up a carefully negotiated stay imposed in another case [i.e., Arkema ] involving the Portland Harbor.... A massive settlement process has been underway for ten years. That settlement process represents the best chance for a timely cleanup of the Harbor." Mot. Stay 3, ECF No. 197. The United States also moves to stay this action after a ruling on its motion to dismiss the claim for NRDA costs. ECF No. 253. Multiple Defendants (Opposing Defendants) have responded to the motions for stay. See ECF Nos. 227, 228, 233, 234, 235, and 236. As Moving Defendants note, Opposing Defendants do not appear to dispute "that the Court should ultimately enter a stay; the only dispute is when that stay should be entered." Defs.' Reply 2, ECF No. 247. Plaintiff takes no position on the motions for a stay. Pl.'s Resp. to U.S. Mot. Dismiss/Stay 2 n.2, ECF No. 270.
A. Background
The United States and the Moving Defendants seek a stay to protect the ongoing settlement process for cleaning up the Portland Harbor Superfund Site, This court has stayed Arkema since 2010 to facilitate a non-judicial allocation process involving almost 200 parties, including the United States, in an attempt to voluntarily settle liability and the allocation of response costs. Plaintiff, which is not a party in Arkema , brings claims in this action against some of the parties that are involved in the ongoing non-judicial allocation process, including some who are parties in Arkema.
Moving Defendants state that 99 parties, including Moving Defendants, "have agreed to participate actively in a confidential, non-binding settlement process, and approximately 100 additional parties have agreed to toll claims while awaiting the outcome of that process." Defs.' Mot. Stay 6.
Moving Defendants note that until the EPA issued the ROD in 2017, the potentially responsible parties "had no way to allocate the costs of cleanup among themselves and develop a performance offer for the EPA." Defs.' Mot. Stay 6-7. Because the ROD's selected remedy contemplates more than 15 years of additional investigation and remedial work, "the settlement process will require the intense and focused attention of the PRPs for some period of time to develop a proposal to EPA to perform and fund the cleanup." Id. at 7.
This court has required the parties in Arkema to submit status reports every six months on the allocation process. In January 2018, this court granted Arkema plaintiffs' joint motion to extend the stay until January 2020.
2. Legal Standards for a Stay
This court has the inherent power to control its docket to "promote economy of time and effort for itself, for counsel, and for litigants." CMAX, Inc. v. Hall , 300 F.2d 265, 268 (9th Cir. 1962). The court has discretion in deciding whether to stay an action, although "the standard is ‘somewhat less deferential’ than the abuse of discretion standard used in other contexts." Dependable Highway Express Inc. v. Navigators Ins. Co. , 498 F.3d 1059, 1066 (9th Cir.2007) (quoting Yong v. INS , 208 F.3d 1116, 1119 (9th Cir. 2000) ). When deciding whether to issue a stay, the court should weigh " ‘the possible damage that might result from the granting of a stay’ "; " ‘the hardship or inequity a party may suffer in being required to go forward’ "; and " ‘the orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay.’ " Lockyer v. Mirant Corp. , 398 F.3d 1098, 1110 (9th Cir. 2005) (quoting CMAX , 300 F.2d at 268 ).
This court may issue a stay " ‘whether the separate proceedings are judicial, administrative, or arbitral in character,’ " and "the issues in such proceedings" need not be controlling of the action before the court. Dependable Highway , 498 F.3d at 1066 (citation and internal quotation marks omitted). Nor must the parties or the issues be identical to "stay proceedings in one suit ... to abide the proceedings in another." Landis v. N. American Co. , 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936) ).
3. Discussion
Plaintiff's claims here present some of the same complex legal and factual issues that are presented by the ongoing non-judicial allocation process. This action, Arkema , and the allocation process all "stem from the same Superfund Site," and "relate to the alleged liability of PRPs at the Site," Defs.' Reply 9 (footnote omitted); U.S. Mot. Dismiss/Stay 17 ("there is a significant overlap of the parties and issues in this case, the Arkema case, and the non-judicial response cost allocation process"). Common issues include determining which potentially responsible parties released which particular hazardous substances; when the releases occurred; the nature and frequency of the releases; and the eventual fate of the hazardous substances contained in the releases, Defs.' Reply 9. Although Plaintiff's NRDA cost claim "is different in geographic scope from the current natural resource damage assessment being conducted by Federal and State Trustee agencies and the other five Tribal Governments, ... [Plaintiff's] assessment cost claim addresses many of the same contamination releases" as those at issue in Arkema and the allocation process. U.S. Mot. Dismiss/Stay 17.
If this litigation continues, it could potentially disrupt or even derail the ongoing settlement process. The 29 Defendants here would likely consider themselves compelled to bring third-party claims against other potentially liable parties that are not currently defendants here, and those third-party defendants in turn would likely bring their own claims against other potentially liable parties, "resulting in cascading litigation among possibly hundreds of parties, including most or all of the parties who voluntarily agreed to attempt settlement with EPA and each other." Defs.' Mot. Stay 8 (footnote omitted). Furthermore, because the ongoing settlement negotiations are confidential and non-judicial, there is a risk of inconsistent outcomes on the same issues. In addition, a stay would promote judicial economy. I find that these factors weigh strongly in favor of staying this action after ruling on the motions to dismiss.
On the other hand, the harm, if any, that a stay might cause would be far outweighed by the potential disruption of the non-judicial allocation process if this action is not stayed. As to possible harm to Plaintiff, Plaintiff has recovered some of its response costs, and has taken no position on the stay. As to possible harm to Defendants, they have cited loss of evidence, but the stay should allow preservation of evidence, for example through perpetuation depositions. Opposing Defendants have not shown that a stay would cause them harm through lost business opportunities or damaged reputations, given the lack of evidence that the parties to the Arkema litigation, stayed since 2010, have suffered such harms. As to Defendants opposing a stay as premature because of the pending motions to dismiss, see ECF Nos. 227, 228, 234, and 235, I am recommending that this court rule on those motions before issuing a stay. Defendant BNSF Railway Co. also argues that the United States' motion for a stay after resolution of the motions to dismiss would "effectively forego[ ] any summary judgment motions until after the stay." BNSF's Resp. 2. However, allowing the parties to proceed to summary judgment, which would first require extensive discovery, would disrupt the ongoing settlement negotiations.
Moving Defendants note that several Defendants that oppose a stay here either joined motions for a stay, or did not oppose a stay, in the Arkema litigation. Defs.' Reply Supp. Stay 6 & n.18, ECF No. 247.
I conclude that this court should stay this action after ruling on the pending motions to dismiss. If the Article III judge adopts the proposed rulings in this Findings and Recommendation, the stay should allow Plaintiff to file a third amended complaint, and allow Defendants to file motions to dismiss, but otherwise the stay should not allow further dispositive motions. The stay should permit discovery, but only for preservation of evidence.
CONCLUSION
The requests for judicial notice, ECF Nos. 203, 256, 262, and 305, are GRANTED. Defendants NW Natural, City of Portland, and Port of Portland's Motion for Stay, ECF No. 197, should be GRANTED. Defendant United States' Motion to Dismiss Portion of Claim 2 and Stay Remaining Claims, ECF No. 253, should be GRANTED. Defendants Airgas USA, Gould Electronics, FMC, and Exxon Mobil's Motion to Dismiss Second Amended Complaint for Failure to Join Parties, ECF No. 254; Defendants' Joint Motion to Dismiss Plaintiff's Claims for Natural Resource Damages as Untimely, ECF No. 255; Defendant BNSF Railway's Joint Motion to Dismiss Plaintiff's Claims for Natural Resource Damages as Untimely, ECF No. 257; Defendant Northwest Pipe's Motion to Dismiss Plaintiff's Second Amended Complaint, ECF No. 258; Defendant Union Pacific Railroad's Motion to Dismiss Second Amended Complaint, ECF No. 259; Defendant Evraz's Motion to Dismiss, ECF No. 261; and Defendants NW Natural, City of Portland, and Port of Portland's Motion to Dismiss Plaintiff's Natural Resource Damages Claim, ECF No. 263, should be DENIED.
The Court should enter a stay of dispositive motions, except that Plaintiff may file a third amended complaint, and Defendants may file motions to dismiss the amended complaint under Federal Rule of Civil Procedure 12(b)(6). Discovery should be stayed except for preservation of evidence.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.