NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-counterdefendant-Appellee, 

 v. 

FEDERAL RESOURCES 

CORPORATION, 

Defendant-counter-claimantAppellant, 

BLUM REAL ESTATE TRUST; BENTLY 

J. BLUM, Trustee of the Blum Real Estate 

Trust; CAMP BIRD COLORADO, INC., 

Defendants.

No. 15-35192 

D.C. No. 2:11-cv-00127-RCT 

MEMORANDUM*

Appeal from the United States District Court

for the District of Idaho

Richard C. Tallman, Circuit Judge, Presiding

Argued and Submitted May 16, 2017

Seattle, Washington

Before: GOULD and PAEZ, Circuit Judges, and LEMELLE,** District Judge.

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Ivan L.R. Lemelle, Senior United States District Judge 

for the Eastern District of Louisiana, sitting by designation.

FILED

MAY 25 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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Federal Resources Corporation (FRC) appeals the district court’s grant of 

summary judgment in favor of the United States on the issues of (1) the United 

States’ liability as an “arranger” under the Comprehensive Environmental 

Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9607(a)(3); 

and (2) the apportionment and divisibility of the clean-up costs; and (3) that FRC

did not create a genuine issue of material fact as to the United States Forest 

Service’s (USFS) compliance with the National Contingency Plan (NCP) at the

North Dump. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

(1) The United States is not liable as an “arranger” under CERCLA. The 

statute imposes strict liability for environmental contamination on, among others, 

“any person who by contract, agreement, or otherwise arranged for disposal . . . of 

hazardous substances owned or possessed by such person, by any other party or 

entity, at any facility . . . owned or operated by another party or entity and 

containing such hazardous substances.” 42 U.S.C. § 9607(a)(3). “[A]n entity may 

qualify as an arranger under § 9607(a)(3) when it takes intentional steps to dispose 

of a hazardous substance.” Burlington N. & Santa Fe Ry. Co. v. United States, 556 

U.S. 599, 611 (2009). Although knowledge that a hazardous substance will be 

dumped “may provide evidence of the entity’s intent to dispose of its hazardous 

wastes, knowledge alone is insufficient to prove that an entity planned for the 

disposal.” Id. at 612 (internal quotation marks omitted). The entity must have 
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entered into the agreement with the intent that there be a “disposal.” See id. 

Here, there is no evidence that the United States entered into the Exploration 

Project Contract with the Funnell and Majer Mining Company (F&M) with the 

intent of disposing of hazardous substances. The evidence shows: First, that the 

United States was interested in the mill and may have encouraged F&M to build it 

because of the anticipated economic benefits; second, that the United States paid 

50% of the total cost of F&M’s exploration mining project in exchange for 

royalties on “the net smelter returns or other net proceeds realized from such ore, 

concentrates, or metal produced”; third, that the United States could—and 

apparently did—inspect and advise F&M on their operation; and finally, that the 

United States knew mine tailings were being stored on-site and was indifferent to 

the disposal of hazardous substances. Missing is any evidence that the government 

intended to dispose of waste for the operator of the mine. At most, the evidence

recited above establishes that the United States knew the mine produced tailings 

that were stored at the Conjecture Mine Site and was indifferent to the disposal of 

hazardous substances. This is insufficient to establish arranger liability, which 

requires intent to dispose of the waste. See Burlington N., 556 U.S. at 612; Team 

Enters., LLC v. W. Inv. Real Estate Tr., 647 F.3d 901, 909–10 (9th Cir. 2011).

(2) FRC did not provide the court with a reasonable basis for apportioning 

the harm at the Conjecture Mine Site. See Burlington N., 556 U.S. at 614. The 
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“harm” in a CERCLA case is “the contamination traceable to each defendant.” 

United States v. Burlington N. & Santa Fe Ry. Co., 520 F.3d 918, 939 (9th Cir. 

2008), rev’d on other grounds by Burlington N., 556 U.S. 599. FRC did not offer

any evidence showing the amount of contamination its waste material contributed 

to the Conjecture Mine Site, as compared to the amount of contamination the waste 

of other potentially responsible parties contributed to the site. Divisibility can be 

established by volumetric evidence and geographic distinctness, see United States 

v. Hercules, Inc., 247 F.3d 706, 719 (8th Cir. 2001), but there must be “evidence of 

a relationship between the volume of waste, the release of hazardous substances, 

and the harm at the site,” In re Bell Petroleum Servs., Inc., 3 F.3d 889, 900 (5th 

Cir. 1993). Here, there is no evidence of that relationship, and there is no 

reasonable basis for apportionment.

(3) The removal action at the North Dump was not inconsistent with the 

NCP. See 42 U.S.C. § 9607(a)(4)(A). Because FRC does not contest that the 

United States has established a prima facie case to recover its response costs, the 

burden shifted to FRC to create a genuine issue of material fact as to whether 

USFS’s response action at the North Dump “was inconsistent with the [NCP].” 

United States v. Chapman, 146 F.3d 1166, 1169 (9th Cir. 1998). FRC did not 

carry its burden. The record shows that USFS considered the site evaluation, and 

the relevant mandatory factors outlined in the NCP. 40 C.F.R. § 300.415(a)(1), 
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(b)(2). It determined that five factors warranted a removal action. USFS’s 

removal action was not “arbitrary and capricious or otherwise not in accordance 

with law.” 42 U.S.C. § 9613(j)(2); see also Chapman, 146 F.3d at 1172–73.

AFFIRMED.