few minutes of the government's time i have to reserve some time for a bottle the government brought this action under the comprehensive environmentalists response compensation liability act to recover their costs for remediating the highly contaminated ground in bryant facility a former pesticide storage and distribution business at the time of the district court decision the government had spent about eight point two million dollars in cleanup at the site of the government recovery from shell oil company as well as burlington northern santa fe railway company and union pacific railroad company the district court found shell liable under circle as an arranger for the disposal of hazardous substance t court found the railroad liable as the owners of the facility the railroads have not appealed the did liability finding by the district court although the court found both shell in the railroad liable it did not hold them jointly and severally liable for the single harm at the site instead based on what the court called an equitable apportionment the court that the court to a spontaneous devise when it was crafting its opinion the court concluded that shell was liable for only six percent of the government's response costs and the rail what railroads are liable for only nine percent this leaves eighty five percent to be paid by the taxpayers the district court erred when it reached that conclusion because it failed to hold the defendants to their burden ethical considerations not those cause ation principles and finally the district court erred because it's now is this last evidentiary support the parties agree that those liable under circle are jointly and severally liable for the government system yet the final remedy has not been selected yet at the site looks like a very difficult problem it is your honor it's highly contaminated site and it's a difficult difficult one to remediate and the governments are doing the best the district court failed to hold defendants to their burden of establishing divisibility with respect to the railroads the district court specifically found there is no evidence to quantify the difference in the volume of releases from the railroad parcel or the b m v parcel the current court further noted that no party has specifically documented the relative contribution of contamination from either parcel with respect to shell the district found that sheldon not present evidence of how its product contribution to the contamination at the arvin facility can be apportioned that failure of evidence you have making a waiver argument what we have to go through the question of whether they presented a theory or presented the evidence or whatever because first of all to establish a right and they didn't do it and and they didn't do it and the government responded to the theory together some other divisibility theory really put to the government and an extreme disadvantage how government the government had no idea to know that the district court was going to try and use the relative partial size to i was just explaining what the prejudice to the government is during the trial phase because we had no opportunity to respond to this very problem with the parcel using the parcel sizes it has no bearing no relationship to the relative contribution of contamination at the site that the governments are immediately there's no the district court just assumed without any basis in the record that the level activities corresponded to the  the length of time that the railroad parcel was part of the facility and there's absolutely no basis for concluding that that approximates the amount of harm caused by the railroad parcel substantial groundwater contamination and crafting its own divisibility theory the court fails to take into account the fact that spills could have been large or small and that the location conditions may vary and therefore the resulting contribution to groundwater contamination would differ substantially in neither the railroads nor shall i offered any theory of divisibility at trial they only contended that they had no liability at all and the district court rejected that contention in such circumstances courts have not hesitated to hold circle defendants jointly and severally liable and the district court erred when it was through a spontaneous attempted to cure the defendant's failure tail's what with respect to one equipment piece of equipment and apply them to a separate piece of equipment with no basis for saying why those why it was appropriate to use spills associated with one activity as being similar to explanation as to why those four years are represented and if there is no expert testimony i mean a lot of the divisibility cases you have expert testimony saying why it's reasonable to make various assumptions or why in one's expert opinion it's appropriate to devise a harm like this here there is no such evidence so that is why that's not good enough in this case your honor and then further you still have to make the next step from the conditions that the how the spill occurred and things of that nature so those things are all very relevant in art and dealt with in the district court's opinion and were not dealt with a trial by the defendants  with respect to the railroads there's really just no basis at all for assuming that one tenth of the site contributed one tenth of the harm which is the beginning of  that leaked on their rammy price i didn't get carried off to the other parcel isn't a problem for us so the only thing we're looking at is materiel that kind of carried off to the other parcel whereas on the some stuff just went directly into the ground and there's a problem for that reason and as and the disturbing part of this frankly is that the the reason why i want doesn't shipment delivery and unloading process shall hired paid for and provided instructions for the common carrier that delivered shelves to the facility shell knew that spills were inevitable and the take single factors and make them the sponsor and in fact the district court properly looked at all the tally of the circumstances and found shell to be an arranger i'd like to reserve the balance and lead counsel for the state of observation and that is that nowhere in this extensive record that you have before you are you going to find an effort on the part of either shell or the railroads to present any kind of percentage or volumetric basis for the divisibility of liability and you're correct it's been rejected but i don't think that that's the kind of the visibility analysis that the courts have required in other cases whereby a defendant has an affirmative duty to demonstrate a theory of liability and a basis for that division of briefly that you know the thing that we find most troubling about this case is the courts the trial court's efforts to try to use an equitable apportionment theory in order to make this kind of legal determination about causation causation legal that in fact there had been no demonstration by the railroads of certain facts that are then the demonstration by shell of certain facts that you can then conclude that they didn't meet the burden of proof and therefore there's no basis for making a divisibility of liability determination five paragraph thirteen yes the government we put it in your honor page one pages one twelve to one thirteen paragraph five so you and i didn't bring volume one now but but one of my colle it is well settled that where there are distinct harms or a single harm capable of being reasonably apportioned among several causes liability as several not joint record page one twelve paragraph five zero share the government argued for one hundred percent liability under joint several liability both extremes were rejected by the court and as your honor pointed out it just isn't sort of the novel approach that the that's the fact finder would make a determination of percentage share for instance in a comparative fault case using all of the evidence that he had and the notion did calculation based on limited evidence this was a judge who worked hard through a twenty seven day trial thirty six witnesses many of them presenting  frustrated at the end because he didn't have the evidence so then and even as it's quite apparent that he thought this was all very unfair and he was going to try and find some way to find a basis for divisibility but i thought the evidence i'm sorry i'm going to write a complaint by a district judge like the complaint in this case than twenty three years or twenty four years of doing this sort of thing and any comes up with this whole construct and that's you know that goes back to whether the issue was raised or not i guess the far as i'm concerned well it it most certainly was and the government's today talk about the railroads and shall not offering this theory they didn't fulfill their obligation to present a theory the obligation is to present proof we have one hundred abbott says it's irrelevant it's irrelevant that brown and brian whom the whom the district court found and gauged in release causing activities every day of operations by brown and bryant with out the railroad parcel and in that period of time he used some and puns on the brown and bryant parcel to  destroy contaminants all of the experts and the district court found that more than ninety nine percent of the contamination at the brown bryant site is related to those  n ponds those clumps and ponds remained unlined until nine hundred seventy nine that's what the court found so during the timeline of what you're saying and it's very hard to  case comes down to i believe are two issues the burden of proof and the standard of review i think that the government's seem to be looking for some degree of certainty in the proof that's greater than a preponderance of the evidence we have this judge making findings that brown in bryant for these fifteen years actually twenty years prior to lining those something that's sixteen years of operations without the railroad parcel engaged in contamination in those sumps and ponds so the question becomes well what portion of the of the of the contamination was caused by something that happened on the railroad parcels the district court found that there were these continuous columns of contamination from the surface of the soil all the way to groundwater he based that on evidence that surface the oil ran in that direction and yet the surface soil on the railroad parcel didn't require any remediation the contamination levels were the government at trial pointed to this whale at the south end of a low point that would have created a collection point for any service run off before it went on to the brown and bryant site and the district court found ordinary or an orderly presentation of this type of case you would not just runkle so hard with visibility which is a very difficult thing for any of the parties here simply we've got just contamination we know it's been contributed to by the railroad and probably by shell and no real as surrogates for forced sort of a volume metric share there by overstating the contribution that could come from the railroad parcel and that the court of course made factual findings that the railroad parcel crew would not have been responsible for as much as ten percent of the site contamination  in any particular length for the district car right well if you did that this was this is what what bothers me about the government's argument that the district court improperly engaged in sort of an equitable analysis and didn't of that evidence went seem to have anything to do with the numbers he came up with because he then he went all the way back to these very basic facts about the size of the parthenon the amount of time and then i really would like you to explain to me the strength errors where that came from any response cost and so on on the railroad course or that it could've been involved in offsite transport surface transport back to the pond  them and of course that's what the that's what judge wayne ger was really concerned with and and obviously he struggled with the best way to accomplish that and  based his ultimate decision on all this evidence concluding that the railroads can't be responsible for the first fifteen years of brown and bryant operations when that was the least partial wasn't part of the brown and bryant side so he took the rest of it and he said you can be responsible for that percentage and he and he he took that of the entire facility and carved out the the the railroad parcel and said you can only be responsible for that percentage of the overall site and then he assumed in that process that there were releases every day throughout that period of time on all the parcels in order to reach this ultimately six percent railroad share that he augmented to reach a conservative number he was bending over backward to reach a conservative number that would not be unfair to the government there you brought up hercules yes running with my brother contamination that resulted in response costs was the sloppy operations on b and b was the on line stumps and ponds that existed for fifteen sixteen years before that the parcel even became part of brown and bryant so he wasn't splitting the difference he wasn't basing his decision on an absence of evidence he used causation based evidence and in order to reach a result that was consistent with evidence and he went through all of them and and and this is this is the decision he reached much like your honor noted a jury which would reach he looked at all of it and he made a decision that i don't believe this this court sitting here now could say well we've done it differently or we think he reached the wrong result this is a result that is supported by all of that evidence that that he laid out it might not be the way your honour's would do it but but it's not clearly erroneous to him to have used those factors and done it in the way he did are going can your child and i'm sorry your honor based analysis of divisibility it's clear this trial court did a lot of work governments have argued that this was some kind of equitable analysis that he did that he was splitting the difference the proof of the putting is in the eating ok to determine what this trial what the trial judge did you need to look at what he did he did not allocate shall six percent share divisible share based on equitable consideration he went through looked at the evidence make calculations based on the evidence to arrive at a six per cent volumetric contribution ok case was quite clear that's appropriate it's permissible and  think that the fact that the judge thought that his divisible decision was the right decision make the legal error in fact i believe the fact that the divisibility analysis coincides with his sense of saying this not once spent many times so the question is what we make of that well i think we make of that that there's some loose language in the decision that the judge wrote over a three year period by himself without including remember the railroads had across the play against shell and ninety six thirteen which is a contribution analysis that would be an equitable portion and using the gore factors and other related factors and in there are many other places in the findings of fact where the judge talks about the law and it's quite clear from those portions if you understand that there's a difference between you know the divisibility analysis which is causation based and an equitable apportion allocation with respect to the orphan share so to the extent they force the government they force the trial court incensed i should say force they have to truck or to look at these issues so it's difficult for me to hear them now complain about the fact that the some of that language pops up in the decision but i think the bottom line is the fact that there may be this kind of equitable references throughout that's relevant ok he looked at the evidence calculate other sources of spills where he had evidence but he didn't have evidence of other sources of spells he didn't rule him out i mean he ruled them out didn't include them and he made a calculation is that a reasonable basis for reallocation which is what the law requires we feel it is important i think mr barch noted this that whatever the trial judge could he erred in the side of favoring the government's ok for example he assumed that there was a three gallons spilled during each and every delivery of d d t the site will testimony by john brown the owner of the site was it was maybe a couple maybe  to a gallon whining merryman who worked there said maybe a quart to five gallons well if the judge had adopted john brown's one gallon asked him at the shells a proportionate share would have been two percent not six percent so the judge really when there water that's in larger quantities it was what the cleanup was aimed at and cleaning that up i'm not even sure that i'm not even sure that the other chemicals in the groundwater reach levels of contaminants of concern this was a quite as toxic and didn't migrate so comparing apples to apples and was there any evidence in the record as to when she only knew this product was so toxic that it should be taken off the market you know i know it was there's evidence in the record of when it was taken off the market i don't know that there was evidence that we left it on the market for a period of time after being told it should be taken off as far as i know there was no evidence one way or the other we pulled it from the market and stop selling it when it became apparent that we needed to do that it stopped being a useful product a term point well these  had it been applied the judge would have considered the fact that this was a useful product at the time it was delivered he would have considered the fact that ownership transferred upon tender of delivery after site and that probably would have considered the fact that bro comments your representative government paid to come testify between them they both testified that they would show up and then brought a bright representative would say either unloaded over there or the broader right person would go and do it who's arranging for all he didn't apply that to tell you the circumstances when we talk about a different issue which is the united states versus shell cases when you consider that case in consideration of the facts of this case it becomes very clear that the trial court committed legal error by applying the wrong legal standard finding a range of liability why is that you know received shell tables were turning the oil companies arguing that united states is liable as a ranger based on its involvement with the production of aviation gas during world war two primary factor the crucial factor that the court identified in united states versus shell was control ok control the other factor that the court talked about in united states versus shel as he disregarded that we arrange for delivery of a useful product well there's knowledge ok let me get back to the united states versus shell because their case was quite clearly that actual control is required actual control is required if you only have the ability to control or opportunity to control without actual control then you are not in a rangers here this judge made a specific finding that shell did not have actual control over the unloading process he nonetheless imposed the ranger liability the i c switches shell and i just i want to read a brief clip from that decision because authority to control is not legally sufficient even where there is knowledge because the united states in the u s versus showcase remember had knowledge united states had opportunity to control and knowledge in our case shell had the opportunity control by way of safe handling instructions where it was trying to prevent spills and the court found it had knowledge all of that was hotly disputed i'm not going to concede the hash even today because we've been fighting that fight a long time if we didn't have knowledge of the stuff was going in contaminating the environment it would have been very easy to  shell may have known that there was an opportunity for spills sometimes with it spills might occur sometime shell didn't know that those skills would not be caught in a bucket would not be caught on an impervious concrete pad would not have been cleaned up if they did get under the soil those are the things that are instructions recommended bryant do if they don't do that if they don't follow our recommendations how can that possibly be a basis for imposing a ranger liability on it ought to be applied liberally they've stretched that they stretch it from direct arranger liability to it which is discussed the u s versus shell to the broader theory of a range or liability the question is how far can you stretch this before the statute loses all meaning that's that's where this case is there is no case that has addressed these facts where someone has arranged to ship a product by common carrier and there are leaks and spills when it's downloaded that imposed a range of liability there are two cases that have considered those exact facts and what if they conclude in those two cases they concluded there was no basis for ranger liability  one of them is the am cast decision a way to look beyond the label that's put on the transaction to find if a transaction that is described as something other than an arrangement for disposal is in fact an arrangement for disposal so in the formulator cases they labeled the transactions formulation pesticides the court considered totality of the circumstances to get beyond that label to find that really there was arrangement for disposal in there same thing that they did with the by product are labeled as a sale of a product when in reality they are get behind the label and you find that oh this is the waster by product that has some nominal commercial value that they're selling but it's not really a sale of a useful product what that really is is the way to ok thank you very much ok thank you fast on that question and one a couple other things with on the divisibility point your honor hit the nail right on the head with the two thirds contaminates with respect to the railroad that comes out of  that they weren't responsible for too much but they could have brought in expert testimony to show i mean they tried to do that and their theory of the case was that we didn't none of our contaminants reach our president the groundwater and they the district court rejected it they could have taken a different theory of the case and try to support what the district court did here they could have said here's an expert who explains why it's appropriate to say that x amount of activity took place on the railroad parcel and why percent of the contaminants there made it to the ground why they didn't do that they said the answer was there unless the court has any other questions i have a question do you folks to ever go t also like to say that for the state of california we are also always interested in participating in mediation and look to try to resolve matters as much as possible through that process as opposed to necessarily this one you just can't tell what these judges  of seven that's one thing but then you're going to say oh by the way i don't i'm not going to be jointly and severally liable for the contamination for the entire site i have to provide reasonable basis in which to demonstrate that there can be some kind of if you look at the cam nuclear versus bush case that we started in our papers that it's instructive on the issue as to whether or not you can substitute theory estimates assumptions for actual foundational facts and  something the railroads can do likewise for shell the court crack court said shell did not present evidence on how its products contaminate contribution to the contamination of the ark and facility can be apportioned the same kind of situation