the starting point is rule fifty four b which does not apply unless there are multiple claims if a complaint asserts only a single right then it states a single claim that is true even if a complaint seeks multiple remedies here the tribes complaint asserts only a single claim under circle surplus section one  seven eight provides that a responsible party is liable to a tribe or a state for several remedies a single finding of liability under circle can support both a remedy of response costs and a remedy of natural resource damages both of those remedies are based on a single legal right under section one hundred seventy here's a simple analogy think of a garden variety auto accident case you may have several remedies you may have a remedy for damage to the car you may have a remedy for economic damage incurred by the plaintive you may have a remedy for non economic damage incurred by the plaintiff but all of it grows out of the roots of the single cl negligence that's essentially what section one hundred seven in a circle is a little bit different than a right it is different let me ask you this if you would it prevail on your so why can't you just look at it i mean there's no hard and fast rule about what is a claim under fifty four b why can't you just look at it that way that is they were seeking a remedy under under for response cause which does not automatically mean they're going to get damages but thinking back to our auto accident example the exact same is true just because the plane to recover damages for totalling the auto that doesn't necessarily mean that the plane is going to recover damages or los wages or medical bills or pain and suffering the exact same thing applies and i think there is a hard and fast rule as to the multiple claim requirement the rest of fifty four b does afford a tremendous amount of discretion to the district court judge and does take into account traditional fish and sea but the one hard and fast rule is the multiple claim requirement i think but this isn't a general tort claim it is circle and went this defeat the policy of circle to get these things cleaned up get things moving i mean there is a policy behind circlip to remedy these situations no where does it say let's wait until the last piece of litigation the last attorney is left standing but nothing in the current appeal affects the cleanup the apportionment issue doesn't affect the clean up the clean up is being driven by that's been decided that if it has nothing to do with the clean up this issue on the merits is done isn't it this issue has been decided so the question for the court is is this issue part of a single claim or multiple claims and this is a difficult counsel i have a question for you on your example of the car accident do we have a day like that supreme court or ninth circuit case that says that if somebody had recovered not be a claim that could be considered under fifty five for i am not aware of any case directly addressing that situation i think the closest case to what we have here is the general acquisition case which does have the language that would address both the auto accident example and the circle zero one zero seven a example essential eight general acquisition says that if you have multiple remedies that doesn't necessarily mean you have multiple claims let me let me just so i understand where your objection is coming from what is the source of your that is what why is this detrimental to your position we'd love for the court to take the case but the court still has to convince itself that there was in fact proper issuance of a fifty four now why why what difference does it make whether if we don't if we were to say fifty four b was it was improper here then be a single appeal at the end of the case but what's going to happen on the district court in that event i mean is there a trial that's going to take place ultimately there would be a trial in the natural resource damages issue yes and then the response costs would get worked into that right the response cost would be part of the court's final judgment there would be a single judgment at the end the case just as there would be in almost any other case except  to turn into the merits but on your issue that you've been arguing there are very large amounts of funds involved right four million attorney fees four point eight million in attorney's fees a total of eight it if it tripe which is trying to protect their their water rights in area they live in is being such a suit is it reasonable to say that everything's got to be on ice and they've got to totally finance even that is and i think it's a bit function of a single judgment role in fifty four b in a wide range of cases you don't have an award of attorney's fees or litigation costs until the end of the case so this is really no different a problem than you would and i don't know any other case other than the magnitude of the amount of time involved because of you know the speed or lack the district courts ward included four point eight million in attorney fees and the district court beauty's as essentially enforcement costs but the tribes could not properly be awarded enforcement costs because they don't have authority to enforce circle at the upper columbia river site now certainly gives authority of enforcement to the president who in turn has delegated his authority to e p a and e p a may also delegate its authority to a state or tribes if if there is such a delegation then state may enforce circle and recover its attorney's fees as enforcement costs and that's because section one hundred seven of circle allows a tribe to recover costs of removal or remediation and section one hundred one sub twenty five in turn says that removal or remediation includes related enforcement activities but here the tribes do not have a at the site because there's been no delegation of enforcement authority by e p a to the tribes in this case without any such delegation an indian tribe doesn't have enforcement authority under circle as we noted in are consistent with the washington state department of transportation case doesn't reject that argument that the tribes have to get authorization from the federal government of the department of transportation case washington state department turns out here it's really doesn't address the authority at all of whether or and when a state has enforcement authority it's a totally different issue looking at what the scope of authority is of the department of transportation and or state law so i've read in that case and there just is nothing going to the issue that's presented here because it wasn't presented in the washington state d o t case and the circle the permit citizens the two individuals complaint but they themselves chose not to assert a claim under the circle system supervision and thank you one other point only what's the exact language in this in the statute that says that the president must delegate or somebody must delegate to the tribes the authority is there is there the authority is the khatron a case on page eight fourteen where it has early that for these other and other governmental entities before they can bring in every sponsor and enforcement response kind of claim that they have to get well  they clearly can bring a claim for recovery of response costs which is different from enforcement let me read to you the precise language from key tronics i get it right so is it eight fourteen sections one zero four and one zero six provides a framework for federal abatement and enforcement actions that the president has delegated agent or the attorney general initiate so even with for example a federal agency you could have a federal agency that say that doesn't say that entity like the tribes can't bring in enforcement proceeding it doesn't address it doesn't say that and it doesn't say that in the statute either well we know that tribes don't have inherent in force meant authority or enforcement authority under circle itself because there is a provision in section one twenty six of circle which set forth in much much detail what the role of a tribe may be and nowhere is there a mention in one twenty six enforcement authority it's just not included in the list now remember stepping back for a second this court's decision in the u s versus chapman makes clear that there can't be an award of attorney's fees unless there's explicit congressional authorization not something reading in between the lines or implied there has to be an explicit is in chapman the court this court held that rattle the federal government may recover its attorney's fees for enforcement activities which in that case was a civil action a to compel a responsible party to clean up a site and in fact chapman specifically notes the legislative history of the sections in question and says that those sections confirm  authority to recover costs for enforcement action so very interesting when chapman identifies explicit congressional authorization it looks to one hundred four which has an explicit congressional authorization for e t a to bring in enforcement action there's nothing comparable or tried turning quickly to the apportionment issue tech is asserted an affirmative defense of apportionment and the supreme court had held that apportionment is proper when there's a reasonable basis for apportionment the typical case is where you have a stream or river and it's polluted by more than one factory the harm may be apportioned according to the evidence of the quantities of pollution that's the case here this is not the case of a single in divisible injury like a gas a broken leg a burnt have a dead cow doesn't resemble it at all here tex submitted evidence that there is indeed a reasonable basis for harm there was expert testimony very at the very minimum it is a disputed issue of fact on the various issues raised by by plaintiffs may seem like a simple question but are there any cases that suggests apportionment occurs when there are not third parties brought in by the defendant i mean you're not pointing to any i mean there's some kind of phantom trail mind trailing out there that's actually consistent with most of cases most of the cases do not involve a specific third party defendant either involve multiple defendants where they're fighting among themselves about how to because many of these cases are showing the third parties aren't brought in in till later in the case after most of the issues have been going to last and apportion the costs with it's just a fairly apportion tax you know response responsibility and then their mother but there may be other potential responsible i absolutely there may be other potential but i never how governments or other problems of this litigation are going on twelve years and yet is there anything in the record to say you've actually identified another response oh yes that the mark johns expert report actually does identify the other sources of the various metals  he had access to all the available data that's clear it to fifty seven to fifty to fifty eight of the excerpts he reviewed more than a dozen e p a reports or reports by e p a or consultants they're listed in the reference list of his report at eighteen twenty one and a twenty five of the excerpts and at the end of the day he opined that only certain potentially toxic substances are released from the slag from the trail smelter and also in his deposition he admitted that those are the only ones that he had sufficient information to form a pension an opinion that they were toxic and this was after he had reviewed all the e p a studies so it wasn't a tactical decision by plaintiffs to look only at six middles in fact those were the only six medals that were days is mr dayton morning your honors may have pleased the court and it was called dayton i am counsel for the confederated tribes of the global reservation i have members of the tribe with me here today including chairman marsh and i also have with me  coke colleague counsel for the state and it fits he and i will divide the argument this morning i will speak briefly on the first two questions rule fifty four b and jurisdiction and then i will turn to the question of recovery of response costs mr fitz will take the divisibility issues before i turn to the specific points that texas raised brief background is useful in this case has been going on to say litigation has been going on since two thousand or these forms of it since two thousand and four the case itself is concerned with response to contamination of the upper columbia river for more than one hundred years tech metals and its predecessors dumped slug and effluent into the columbia river a trail nine point seven nine seven million tons of it float downstream into  petitioned e p a to conduct the site investigation they joined with e p a to in a coordinated fashion to accomplish that investigation after tech refused to comply with the p s unilateral administrative order identifying tec as a responsible party and requiring participation in a circle of remedial investigation and feasibility study the tribes responded by funding as the distance suit to enforce a unilateral administrative order the state of washington joined and that culminated in what we called is one decision establishing that circle applies to require tech to participate in any cleanup of the site the tribes then spent more than three million dollars investigating and evaluating say conditions and developing evidence that was provided d p a and used in response costs litigation that work contradicted tex adamant denial that it was the source of contamination at the site it's adamant denial that it it its wastes had released how does it as a just substances to the site after two trials the district court found tack liable party under circle and awarded the tribes response costs techno appeals and raises fo issues on appeal the first is rule fifty four b tec urges that this case even though it's been pending this portion of it has been pending since two thousand and eight is not ripe for appeal and must wait until the remaining cause of action natural resource  damages is it to dictated the district or did not agree with that the district court in its appearance decision reasoned that cost recovery in this case is complete the two causes of action to establish the entitlement to recover response costs and the amount of the response costs have been decided and now this case is ready for review counsel how do you respond to the argument of the appellant that there is only one damages flowing from one place causes of action are all circle of causes of action but each of the causes of action have different elements and different remedies in that way they are fundamentally distinct from the two cases  that likes to cite the arizona carpenters case and the united states supreme court's decision in liberty lobby both of these goes cases involve instances in which either liability was decided or some form of remedy was decided by the district judge and the district judge then certify the decision for review and this either the court of appeals or supreme court said no you haven't fully adjudicated the case this case is actually much more like the supreme court's decision in curtis right in which the court said certification requires determination of a final judgment has been entered on a cognizable claim for relief it must be final in the sense that it is an ultimate disposition of an individual claim and to do in the course of a multiple claims action that's exactly what happened here a case was tried liability was determined damages were determined the remedy was determined and the judge has now found that tech is responsible for more than a million dollars of response costs which tech does not want to pay into many years until many years into the future the cause of action that remains which is natural resource damages is fundamentally different than those two causes of action the response cost cause of action concerns proof only of a single instance of release of a past substances into the environment of the upper columbia river a national resource damage cause of action in contrast which is the cause of action that remains involves proof of that contamination throughout the one hundred fifty mile river the one hundred fifty river mile site and more more frankly more complicated proof the of a causal relation between those deposits throughout the one hundred fifty mile site and injury to the natural resources of the surrounding environment a much more extensive and comprehensive set of proof and certainly to recall the court's questions of counsel adjudication of the two causes of action of a which have which has occurred in no way determines the outcome of the ultimate natural resource or have a cause of action is not in fifty four b that's true  is the claim while you're on of the the supreme court in the liberty lobby case said we do not need to decide what it claims means and so the court has not given us guidance on how to how to apply is the cause of action mean for  you cause of action to mean as a litigator a cause of action means a set of elements i have to prove a series of of elements in order to establish a right of recovery and those elements include liability and they include damages and  claim such that it can that final judgment can be entered and we can deal with other claims later and review can occur now and so i think that that adjudication of claims has occurred as a district court judge noted and now the case properly  calder because they reason that this is not intentional tort this case does not involve intentional torts and calder applies only to intentional parts that's wrong first discourse already decided because it's one that called or applies to this case and so there's no the requirement under calder that's flatly false the district court rejected that conclusion and made a series of findings that demonstrate express in the most i think both concrete and relevant of which is that tech and the words of its own environment manager has been treating make roosevelt as its own free convenient waste facility i think that's sufficient to demonstrate express amy for the purpose of jurisdiction let me turn then your honor to the third question that is for my it is my responsibility this morning and that is the question of whether response costs are recoverable here by the tribes based on the work that it did originally petitioning e p a to investigate the site then conducting its own site investigation and assessment ultimately proving tax liability on that subject check which is to start with a phantom element of enforcement authority but i would like to start with a statute the statute in question is now is of section one hundred seven a and that statute is very clear and that statute gives the governmental entities such as the tribes the state and the federal government the right to recover response costs there's no words such as that force of an authority there the words are very simple that proof of liability gives a right of recovery of response costs the district court reason that in that way as well in the district court looked at the the costs that were asserted here and the district court found that the extensive site investigation that had been done by the tribes which included fingerprinting tags slagged which concluded proving the releases to the environment i will say against the steadfast opposition of tech which reasoned that there had been no release at all that work investigating say conditions was necessary to assess the site conditions and that's the definition your honour's in in in circles for coverable response costs and the district court was satisfied that the proof of the that work is proof of what it is technically a removal and that supported more than three million dollars of a response cost toward once that amount is determined that it's straightforward that the surplus actually which includes in this definition of response costs enforcement costs related there to encompasses the cost that must be incurred in order to prove in title meant to recover those response  so that that evidence alone is sufficient to establish that what's required for recovery under under section one hundred seventy eight that doesn't start there it starts with the proposition that well no you must first prove that you have unfortunate authority before you can recover the costs that are authorized to you meaning the tribes under section one zero seven eight there is of course no case that says that and there is a court case in this circuit that rejects that the washing transportation case very good states that there is no precondition of enforcement authority is necessary before the state can recover its response costs the same analysis applies here certainly enforcement cost is actually a much more mundane concept it's used in many circles circle cases  i will represent to the court no delegation of authority from e p a to a state or tribe even under a cooperate of agreement we've cited to the rules that sabots eligibility for those crop are due for green mints they require the state or the tribe to show it has its own jurisdiction administrative ability to pursue enforcement to compel cleanup or recover response costs also and this is outside the briefing but i'd court to look at executive order one two five eight zero where the president delegate authority there again in sections four and six no provision for delegation to a state or tried but that doesn't matter because we're talking about a different sort of enforcement at stake and the last point i'll make is if you look at the chapman case a would not have recovered response costs litigation costs in that case because even though it issued an order to the p r p defendant it was not suing to enforce the order in that case it was just suing to recover money and the court held that that was in a pill trial on but before we even get to the merits of what the district court did there were subsequent developments in the case that negated tex divisibility position it made three arguments for divisibility the first was its flag simply doesn't leak and it's liquid elephant effluent just passes down river in other words we have no share because we have no liability the second argument was at the most maybe are slag leeches a tiny fraction of zinc but when you compare it to other legit sources it's a zero point zero five percent share and then the third base was a total mass of metals techs alleged inputs versus other religion puts so here the two things that moot its arguments first it stipulated on the eve of trial that in fact its flag does leach its leg leaches more metals than just think and its liquid elephant effluent did come to repose in the upper columbia river and it also released metals the other factor is that techs volume inputs from other alleged sources that mr johns used as a were provided by a different alleged expert mr brown those were asserted both for the divisibility defense and a counter claim versus the state and in the context of the counter claim versus the state we brought  motion and mr brown's work was excluded tech did not appeal that exclusion so there is nothing left of text to build a case even regardless of the merits of the summary judgment road but let's turn to those merits so undersell a tax it's proper for the district court to grant summary judgment where there is a failure to support an essential element of a claim or defense and that's the case  here there are two crucial things to understand about this to visibility issue the first is we as plaintiffs had no burden to allege harm or prove any harm related to this case it's not a traditional tort case we have to prove the single release of a single contaminant at a site where we have incurred response costs so our liability case does not put harm it issue the second crucial point is that the harm at this site still is not known today we brought our claim our suit at the outset to force tech in a position to have to investigate and figure out the harm at the site and tech fully understood site encompassing hundreds of miles and numerous contaminants which e p a acknowledges came from multiple sources other than tech community go operating at various times locations inside and outside the site for example dioxins  emotion was denied it made the choice to go ahead and pursue a divisibility theory at this point even though the harm had not yet been characterized on the theory that it could restrict harm to what it claimed was our case it restricted its divisibility case to the release of seven medals only and just in the top five centimeters of sentiment sentiment despite the fact that we did not allege the tech only release these seven metals that we did not allege that x releases are the only release of the site and despite text full awareness that the contamination of the site is not limited to just those seven metals or just that top five centimeters of sentiment it built a fantasy case so the threshold legal question before the district court was whether there was a single harm presented that was theoretically capable of being defied and from the bell petroleum case to answer that question it's necessary to quote the nature of the harm is the term in factor and whether you can theoretically divide harm but here we could let me say this when you said divide time as a dividing harm or a portion in the cost of the of the clean well i think it are they to directly related why i think they are related in this sense and i've done a lot of reading of the divisibility case and i think my best conception of what harm means in this circle context is the full extent of contamination from all sources and what is required to remedy that contamination and the cost you know is an expression of that effort to remedy to have a nation but i think it's those two things together that's possible i may not be able to because you may not be able to apportion it and therefore are jointly and severally one and that's that's what we maintain the case is here certainly the posture of the case at this point in terms of what we know about the site and i'm just curious you keep putting it in terms of harm as opposed to portion in the costs well i think again i think in this circle context and i think that this is part of this court's jurisprudence and in the even in the northern case which i understand was reversed by the supreme court but i don't think on this issue you know the question of what the harm is is not just an expression of dollars it's it's a question of what is the extent of contamination at the site and tech says from defendant and of course it realizes that that can mean nothing here because we only have one defendant you can't divide techs own shares so it went off and built this fantasy case but but the harm here does mean more than just an dollars it means what is the contamination that has to be addressed under circle because that's really what the harness and just jumping for the author that that's  really what happened on summary judgment we presented evidence in the declaration of a drawn roland that there were there was more contamination at the site than tech accounted for in its divisibility defense and tech did not dispute that as a as an issue of fact it tried to adhere to the legal argument that the only harm it needed to prove was in direct relation to our case even though the divisibility case it built went well beyond the allegations that  we presented with respect to individual liability it's i think really a fairly simple issue here of failure of tech to sufficiently bring proof to prove a disability case at this juncture and so i had to do is raise the tribal issue of fat right and there are none here i mean i've already presented the argument as to why all of it's legit issues of fact are moot but the key is that the fact that was what that's what later happened before trial are correct but we're talking about what happened at summary judgment what happened in summary judgment is the court said the burden is on the defendant to prove harm is divisible and i will say that that is very clear burden in case law you look at monsanto in the as with any other summary judgment motion plaintiffs had the ultimate burden of persuasion of showing that there were no disputed issues of fact and that they were entitled to judgment as a matter of law to answer the court's question what are we dividing here i think the case law is clear from both the seventh circuit decision and c r and the ninth circuit's decision in burlington northern prior to reversal that you're really apportion contamination you're apportioning the harm you're not a portioning the costs and here so there is a direct relationship in other words if you if you cause thirty percent of the harm you only get you're only responsible for thirty percent of that in a normal case unless you have a trip wire or threshold situation like you had in in c r where anything above a certain threshold would require a particular type of clean up here there's been no determination of that sort by e p a that there's a particular threshold or trip wire that would require a an excavation you know for example so very different factual record and  respect turning to the attorneys fee issue there must be an express congressional authorization for example the citizen supervision of one fifty nine has an express attorney for the provision there's nothing like that here the court had asked what is it in circle what's the statutory provision providing for delegation by the president to e p a to a state or tribe section one hundred four one that's what authorizes e g a to delegate to the state or tribes and here if i read it it's going to i mean it's going to say that in order for the tribe to were to bring a tribe to bring a response action like the also check it out when i get back in chambers one portion of the excerpts of record to read in conjunction with that is to zero nine of the excerpts where the tribes actually disclaimed any responsibility to act as an your excellent arguments and this case shall be submitted in the course will court will recess until tomorrow thank you