FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEPH A. PAKOOTAS, an individual 

and enrolled member of the

Confederated Tribes of the

Colville Reservation and DONALD

R. MICHEL, an individual and

enrolled member of the

Confederated Tribes of the Coville

Reservation,

Plaintiffs-Appellants,

No. 08-35951

STATE OF WASHINGTON,

Petitioner-Intervenor-Appellant,  D.C. No.

2:04-cv-00256-LRS

and

CONFEDERATED TRIBES OF THE

COLVILLE RESERVATION,

Plaintiff,

v.

TECK COMINCO METALS, LTD., a

Canadian corporation,

Defendant-Appellee. 

7207
JOSEPH A. PAKOOTAS, an individual 

and enrolled member of the

Confederated Tribes of the

Colville Reservation; DONALD R.

MICHEL, an individual and enrolled

member of the Confederated

Tribes of the Coville Reservation; No. 10-35045

CONFEDERATED TRIBES OF THE D.C. No. COLVILLE RESERVATION,  2:04-cv-00256-LRS Plaintiffs-Appellees,

OPINION STATE OF WASHINGTON,

Plaintiff-Intervenor-Appellee,

v.

TECK COMINCO METALS, LTD., a

Canadian corporation,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Washington

Lonny R. Suko, Chief District Judge, Presiding

Argued and Submitted

November 6, 2009—Seattle, Washington

Filed June 1, 2011

Before: Arthur L. Alarcón, Andrew J. Kleinfeld, and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Kleinfeld

7208 PAKOOTAS v. TECK COMINCO METALS
COUNSEL

Paul J. Dayton, Short Cressman & Burgess, PLLC, Seattle,

Washington, for the appellants.

Michael L. Dunning (argued), and Kristie E. Carevich

(briefed), Assistant Attorneys General, Olympia, Washington,

for intervenor-appellant State of Washington.

PAKOOTAS v. TECK COMINCO METALS 7211
C. Douglas Floyd (argued), and Kevin M. Fong (briefed), Pillsbury Winthrop Shaw Pittman LLP, San Francisco, California, for the appellee. 

OPINION

KLEINFELD, Circuit Judge: 

We address citizen suit jurisdiction under the Comprehensive Environmental Response, Compensation, and Liability

Act (CERCLA). 

I. Facts

Teck Cominco Metals Limited (Teck Cominco), a Canadian mining company, owns a smelter in Trail, British Columbia. From 1905 to 1995, slag from the smelter was dumped

in the Columbia River, ten miles north of the border with Washington.1

 Pollution flowed downstream into the United States.

In 1999, the Colville Tribes petitioned the Environmental

Protection Agency (EPA) to assess environmental contamination in the Columbia River and Lake Roosevelt, which border

their reservation’s lands.2 The EPA completed its investigation in 2003, determining that the Upper Columbia River site

was eligible for inclusion on CERCLA’s National Priorities

List.3 That list is colloquially called the “Superfund List”

because sites on it are top priorities for cleanup and are eligible for CERCLA-financed remedial action.4

1

See Pakootas v. Teck Cominco, 452 F.3d 1066, 1069 (9th Cir. 2006)

(hereinafter, Pakootas I). 

2

Id.

3

Id.

4

See 42 U.S.C. § 9605(c); see also United States v. W.R. Grace & Co.,

429 F.3d 1224, 1228-29 (9th Cir. 2005) (“For example, remedial actions

are only eligible for Superfund financing when the site is listed on the

National Priorities List.”). 

7212 PAKOOTAS v. TECK COMINCO METALS
While the EPA’s investigation was still ongoing in 2002,

Teck Cominco and its American subsidiary, Teck Cominco

American Incorporated, negotiated with the EPA, but did not

reach an agreement.5 Complications arose from, among other

reasons, Canadian government concerns about Canadian sovereignty and the American assertion of jurisdiction. 

No voluntary agreement was reached, so the EPA in

December 2003 issued a unilateral administrative order.6 The

order commands Teck Cominco and its American subsidiary

to conduct a remedial investigation and feasibility study to

assess the site conditions and to implement a cleanup.7 Teck

Cominco did not comply with the order.8 The EPA took no

action to enforce it.9

Plaintiffs Joseph A. Pakootas and Donald R. Michel sued

Teck Cominco to enforce the EPA’s unilateral administrative

order.10 They founded jurisdiction on the citizen suit provision

of CERCLA,11 seeking: (1) a declaration that Teck Cominco

was in violation of the order; (2) an injunction compelling

5Pakootas I, 452 F.3d at 1070. 

6Pakootas I, 452 F.3d at 1070. 

7

Id. at 1068. 

8

Id. at 1070. In their Second Amended Complaint, Plaintiffs allege that

Teck Cominco “unequivocally indicated its intent not to comply with the

terms of the U[nilateral ]A[dministrative ]O[rder] by its letter dated January 12, 2004 from G. Leonard Manual to Michael F. Gearhead.” 

9Pakootas I, 452 F.3d at 1070. 

10Counsel for the parties, evidently specialists in environmental law,

refer to the unilateral administrative order as a “UAO.” We use the

English language here and elsewhere to avoid taxing the reader with

unnecessary memorization of acronyms. See Northern Cheyenne Tribe v.

Norton, 503 F.3d 836, 839 n.1 (9th Cir. 2007); Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1308 n.1 (9th Cir. 1992). 

1142 U.S.C. § 9659(a)(1). 

PAKOOTAS v. TECK COMINCO METALS 7213
compliance; (3) penalties for Teck Cominco’s failure to comply; and (4) attorneys’ fees and costs.12

Teck Cominco moved to dismiss for lack of subject matter

and personal jurisdiction, and for failure to state a claim upon

which relief could be granted. Before the district court ruled

on the motion to dismiss, the State of Washington intervened

in the litigation and sought the same relief. The district court

denied Teck Cominco’s motion to dismiss, but certified the

order for interlocutory appeal.13 While that appeal was before

us, the Confederated Tribes of the Colville Reservation joined

as a party plaintiff. Subsequently, the State amended its complaint to seek the anticipated costs of the CERCLA recovery

and assessment, as well as declaratory relief regarding the reasonable costs of assessing natural resource damages, a claim

that is proceeding in district court. The Colville Tribes have

added the same demand as the State, and these claims are now

proceeding in district court.

We affirmed the district court’s denial of Teck Cominco’s

motion. We held that the suit was not an extraterritorial application of CERCLA because even though the smelter was in

Canada, slag had moved downstream into the United States.14

Because a “site” where a hazardous substance has “come to

be located” falls within the definition of a “facility” in CERCLA, we held that the EPA was not acting extraterritorially

in addressing that downstream “facility.”

15 The unilateral

administrative order, we held, was addressed to this “facility”

within the State of Washington.16 We did not reach the ques12Pakootas I, 452 F.3d at 1070. 

13Id. at 1071. 

14Id. at 1074. 

15Id.

16Id.

7214 PAKOOTAS v. TECK COMINCO METALS
tion of whether Congress intended CERCLA to apply extraterritorially.17

While that appeal was pending, but before we had decided

it, the EPA and Teck Cominco settled. The settlement went

into effect in June 2006. Teck Cominco, the Canadian company together with its American subsidiary, and the EPA,

signed what they called a “contractual agreement” (not a stipulation for a consent decree or other court order) to perform

remediation. Teck Cominco consented to personal jurisdiction

in the United States District Court “solely for the limited purpose of an action to enforce” designated provisions of the

contract. The EPA covenanted not to sue for penalties or

injunctive relief for noncompliance with the unilateral administrative order, “conditioned upon the satisfactory performance” by Teck Cominco of its obligations under the

contract. And pursuant to the contract, the EPA withdrew the

unilateral administrative order. To this day, the EPA has taken

no action to collect penalties for Teck Cominco’s 892 days of

noncompliance with that order.18

Meanwhile, Teck Cominco had petitioned for certiorari

from our decision. The Supreme Court, evidently considering

the petition quite seriously, invited the Solicitor General to

17See id.

18Teck Cominco was out of compliance with the unilateral administrative order for 892 days: from its original issuance on December 11, 2003

until it was withdrawn on June 2, 2006 by the settlement with the EPA.

This length of time could be very costly for Teck Cominco, as the statutory fines for violating an order on a daily basis quickly add up. See 42

U.S.C. § 9606(b)(1) (“(1) Any person who, without sufficient cause, willfully violates, or fails or refuses to comply with, any order of the President

under subsection (a) may, in an action brought in the appropriate United

States district court to enforce such order, be fined not more than $25,000

for each day in which such violation occurs or such failure to comply continues.”); see also 73 Fed. Reg. 75,340, 75,340-46 (Dec. 11, 2008) (setting

the current maximum monetary penalty amount for noncompliance at

$37,500 per day). 

PAKOOTAS v. TECK COMINCO METALS 7215
express the views of the United States. The Solicitor General,

urging denial of certiorari, filed an amicus brief arguing both

that the case was moot because of the settlement agreement,

and that citizen suits for penalties could be brought only for

ongoing, not past, violations. The Court denied certiorari, so

these arguments were not ruled upon.19

Plaintiffs then amended their complaint, no longer seeking

declaratory and injunctive relief, but maintaining their claims

for civil penalties for Teck Cominco’s 892 days of noncompliance with the unilateral administrative order, and for costs

and attorneys’ fees. Teck Cominco once again moved to dismiss. The district court dismissed the claims under Rule

12(b)(1) for lack of jurisdiction. The district court granted a

stipulated Rule 54(b) certification of its dismissal order,

because Pakootas and Michel had no claims except for penalties for the 892 days of past noncompliance, and resolution of

the remaining claims of the Colville Tribes and the State of

Washington for response costs or damages from the cleanup

might not be resolved for several years. 

Plaintiffs appeal. 

II. Analysis

We review a district court’s Rule 12(b)(1) dismissal de novo.20

The district court held that the Pakootas-Michel claim for

penalties for the 892 days of noncompliance was a challenge

barred by 42 U.S.C. § 9613(h), and that it did not fall within

§ 9613(h)(2)’s exception. We generally agree with the district

court’s careful analysis and affirm. Appellants argue that the

district court erred in both respects, and also that these statutory limitations go only to whether a claim upon which relief

could be granted was stated, and not jurisdiction. 

19Teck Cominco Metals, Ltd. v. Pakootas, 552 U.S. 1095 (2008). 

20Rhoades v. Avon Products, Inc., 504 F.3d 1151, 1156 (9th Cir. 2007)

(“We review de novo dismissals under Rules 12(b)(1) and 12(b)(6).”). 

7216 PAKOOTAS v. TECK COMINCO METALS
A. Is 42 U.S.C. § 9613(h) jurisdictional?

[1] Plaintiffs argue that 42 U.S.C. § 9613(h) is a timing

regulation, not a limitation on jurisdiction. We disagree. Here

is the relevant statutory language: 

(h) Timing of review

No Federal court shall have jurisdiction under Federal law other than under section 1332 of Title 28

(relating to diversity of citizenship jurisdiction) or

under State law which is applicable or relevant and

appropriate under section 9621 of this title (relating

to cleanup standards) to review any challenges to

removal or remedial action selected under section

9604 of this title, or to review any order issued under

section 9606(a) of this title, in any action except one

of the following:

(1) An action under section 9607 of this title to

recover response costs or damages or for contribution.

(2) An action to enforce an order issued under section 9606(a) of this title or to recover a penalty for

violation of such order.

(3) An action for reimbursement under section

9606(b)(2) of this title.

(4) An action under section 9659 of this title (relating to citizens suits) alleging that the removal or

remedial action taken under section 9604 of this title

or secured under section 9606 of this title was in violation of any requirement of this chapter. Such an

action may not be brought with regard to a removal

where a remedial action is to be undertaken at the

site.

PAKOOTAS v. TECK COMINCO METALS 7217
(5) An action under section 9606 of this title in

which the United States has moved to compel a

remedial action.21

Plaintiffs argue that both the title of the subsection, “Timing of review,” and a Seventh Circuit decision, Frey v. EPA,

22

establish that the statute merely regulates timing, and is not a

true jurisdictional statute. 

[2] Subsequent to the Seventh Circuit’s decision, the

Supreme Court clarified how to determine whether a statute

limits jurisdiction or simply affects whether a claim for relief

can be stated.23 Arbaugh v. Y & H Corp. concedes that the

Supreme “Court and others have been less than meticulous”

about when statutes should be deemed “jurisdictional.”

24

Rejecting what it called “drive-by jurisdictional rulings,”

25 the

Court adopted a “readily administrable bright[-]line” test.26 “If

the Legislature clearly states that a threshold limitation on a

statute’s scope shall count as jurisdictional, then courts and

litigants will be duly instructed and will not be left to wrestle

with the issue.”

27 If not, then the restriction is nonjurisdictional.28

2142 U.S.C. § 9613(h) (emphases added). 

22270 F.3d 1129 (7th Cir. 2001). 

23We recently acknowledged that a jurisdictional limitation, such as

“[s]tanding, or the lack of it, may be intertwined with whether the complaint states a claim upon which relief can be granted, but it is not the

same thing.” Catholic League for Religious and Civil Rights v. City and

County of San Francisco, No. 06-17328, ___ F.3d ___, 2010 WL

4138432, at *2 (9th Cir. Oct. 22, 2010) (en banc). 

24546 U.S. 500, 511 (2006). 

25Id. at 512. 

26Id. at 516. 

27Id. at 515-16; see also Henderson v. Shinseki, No. 09-1036, slip op.

at 6 (S. Ct. Mar. 1, 2011) (“Under Arbaugh, we look to see if there is any

‘clear’ indication that Congress wanted the rule to be ‘jurisdictional.’ This

approach is suited to capture Congress’ likely intent and also provides

helpful guidance for courts and litigants, who will be ‘duly instructed’

7218 PAKOOTAS v. TECK COMINCO METALS
The Court reemphasized this bright-line test last year in Reed

Elsevier, Inc. v. Muchnik, focusing on whether the word “jurisdiction” was used in a sentence controlling the claim at issue.29

And even more recently in Henderson v. Shinseki, the Court

held that the 120-day deadline for filing appeals in Veterans

Court was nonjurisdictional because the provision at issue did

not speak in jurisdictional terms.30

[3] Here, the statute says “[n]o Federal court shall have

jurisdiction . . . .”

31 That language expressly addresses jurisdiction, satisfying the bright-line test of Arbaugh.

32 Because

the words are “[n]o Federal court shall have jurisdiction,” the

statute means that no federal court shall have jurisdiction. The

statute limits the timing of judicial review33 by means of the

“jurisdiction-stripping provision contained in 42 U.S.C.

§ 9613(h).”34 Were we to wiggle around the words “[n]o Federal court shall have jurisdiction” because of the timing language, we would be doing just the sort of “wrestl[ing]”

Arbaugh rejects in favor of a bright-line test.35 As we held in

regarding a rule’s nature.” (citing Arbaugh, 546 U.S. at 514-16, and

n.11)). 

28See id.; Arbaugh, 546 U.S. at 515-16; Bodine v. Graco, Inc., 533 F.3d

1145, 1148 (9th Cir. 2008) (“Because [49 U.S.C. ]§ 32710(a) ‘does not

speak in jurisdictional terms or refer in any way to the jurisdiction of the

district courts,’ it was improper to dismiss this case on jurisdictional

grounds.” (quoting Arbaugh, 546 U.S. at 515)). 

29130 S. Ct. 1237, 1244-45 (2010) (discussing Arbaugh and choosing to

“apply this same approach to [17 U.S.C.] § 411(a)”). 

30Henderson v. Shinseki, No. 09-1036, slip op. at 8-9 (S. Ct. Mar. 1,

2011). 

3142 U.S.C. § 9613(h). 

32Arbaugh, 546 U.S. at 516. 

33City of Rialto v. West Coast Loading Corp., 581 F.3d 865, 869-71 (9th

Cir. 2009). 

34Id. at 869. 

35Arbaugh, 546 U.S. at 516. 

PAKOOTAS v. TECK COMINCO METALS 7219
McClellan Ecological Seepage Situation v. Perry, the statute

“amounts to a ‘blunt withdrawal of federal jurisdiction.’ ”

36

B. Does the jurisdictional bar apply?

(1) Is the Pakootas-Michel suit for penalties a 

“challenge”?

[4] The jurisdictional bar applies to “challenges to removal

or remedial action . . . .”

37 The statute “ ‘withholds federal

jurisdiction to review . . . claims, including those made in citizen suits and under non-CERCLA statutes, that are found to

constitute ‘challenges’ to ongoing CERCLA cleanup actions.”

38

Appellants argue that they make no challenge to the ongoing

remedial action pursuant to the contract, because all they seek

are penalties for the 892 days of past noncompliance with the

withdrawn unilateral administrative order. 

[5] Congress made a choice to “protect[ ] the execution of

a CERCLA plan during its pendency from lawsuits that might

interfere with the expeditious cleanup effort.”

39 As we held in

McClellan, where the EPA works out a plan, and a citizen suit

“seeks to improve on the CERCLA cleanup” because it

“wants more,” that constitutes interference.40 Such a claim

“would second-guess the parties’ determination and thus

interfere with the remedial actions selected . . . .”

41

True, plaintiffs seek only past penalties, not any additional

requirements for the ongoing cleanup. But that demand is still

a challenge. 

3647 F.3d 325, 328 (9th Cir. 1995). 

3742 U.S.C. § 9613(h). 

38McClellan, 47 F.3d at 329. 

39Id.

40Id. at 330. 

41Id.

7220 PAKOOTAS v. TECK COMINCO METALS
First, Teck Cominco and the EPA made a deal to accomplish the cleanup. Part of their contract is that the penalties are

neither sought nor waived. They are the EPA’s hammer, held

over Teck Cominco’s head. The penalties are not Pakootas

and Michel’s hammer to wield. The penalties are the EPA’s

hammer. 

[6] Under the agreement, the United States covenanted not

to sue for the penalties for the 892 days, “conditioned upon

the satisfactory performance” by Teck Cominco of its cleanup

obligations.42 That conditional covenant not to sue means that

if Teck Cominco does not perform its obligations, the EPA

can bring down its hammer, by seeking penalties of up to

$27,500 a day for 892 days,43 more than $24 million. The penalties Pakootas and Michel want to enforce are the hammer

EPA retained to compel performance of the agreement. If

42The relevant paragraph of the agreement is as follows: 

[T]he United States covenants not to sue or to take administrative

action against T[eck ]C[ominco] and T[eck ]C[ominco ]A[merican ]I[ncorporated] pursuant to Sections 106 and 107(a) of CERCLA, 42 U.S.C. §§ 9606 and 9607(a) . . . for (i) civil penalties or

injunctive relief for non-compliance with the Unilateral Administrative Order issued by EPA to T[eck ]C[ominco] on December

11, 2003, or (ii) for performance of the R[emedial ]I[nvestigation]/F[easibility ] S[tudy] costs paid by

T[eck ]C[ominco ]A[merican ]I[ncorporated]. This covenant not

to sue shall take effect upon the Effective Date of this Settlement

Agreement, and is conditioned upon the satisfactory performance

by T[eck ]C[ominco ]A[merican ]I[ncorporated] and T[eck ]C[ominco] of their obligations under this Agreement. 

United States Environmental Protection Agency, Agreement for Remedial

Investigation and Feasibility Study, at 22 (June 2, 2006), available at

http://yosemite.epa.gov/R10/CLEANUP.NSF/7780249be8f251538825650

f0070bd8b/f0e551fb8a69dcd288256fac00064739/$FILE/TeckCominco_

SettlementAgreement.pdf. 

43See 42 U.S.C. § 9606(b)(1); see also 73 Fed. Reg. 75,340, 75,340-46

(Dec. 11, 2008) (listing the maximum penalties rate for noncompliance

from January 31, 1997 through March 15, 2004 at $27,500 per day, and

from March 16, 2004 through January 12, 2009 at $32,500). 

PAKOOTAS v. TECK COMINCO METALS 7221
Pakootas and Michel were to enforce the penalties, the EPA

would be left bare-handed, without this weapon. And if Teck

Cominco paid the parties adjudicated before the cleanup was

done, it might find it economically advantageous to walk

away from further cleanup efforts, an “efficient breach.”

44

Also, were the EPA to seek to enforce the agreement at that

point, all the risks to its position raised by extraterritoriality

concerns and other litigation hazards would rise again.45 Like

all litigation, a lawsuit against Teck Cominco could go sour

for the EPA. No doubt that risk played into its decision to settle the matter by contract.

[7] In addition, penalties exacted before a cleanup is completed may interfere with the ability to perform a cleanup.

While Teck Cominco may, for all we know, have the ability

to pay $24 million in penalties and possibly a great deal of

additional money to Pakootas and Michel for attorneys’ fees,

and still have plenty of money left for a cleanup, that cannot

be assumed for this or for all cases. Many polluters do not

have unlimited financial resources. Sometimes the orange is

squeezed dry. And if it is, whatever juice going to the government in penalties and to the lawyers in fees cannot go from

the polluter to the contractors who perform the cleanup work.

44See, e.g., Charles Goetz & Robert Scott, Liquidated Damages, Penalties, and the Just Compensation Principle, 77 Colum. L. Rev. 554, 578

(1977); cf. Oliver Wendell Holmes Jr., The Path of the Law, 10 Harv. L.

Rev. 457, 459 (1897) (“If you want to know the law and nothing else, you

must look at it as a bad man, who cares only for the material consequences

which such knowledge enables him to predict, not as a good one, who

finds his reasons for conduct, whether inside the law or outside of it, in

the vaguer sanctions of conscience.”). 

45See, e.g., Morrison v. Nat’l Australia Bank Ltd., 130 S. Ct. 2869, 2878

(2010) (“When a statute gives no clear indication of an extraterritorial

application, it has none.”). The Supreme Court’s recent decision in Morrison shows the Court’s interest in the extraterritorial application of statutes,

and this is confirmed by the Court having invited for the views of the

Solicitor General on the extraterritoriality issue with the previous petition

for certiorari in this case in 2007. 

7222 PAKOOTAS v. TECK COMINCO METALS
A suit for past penalties always has the potential to interfere

with ongoing cleanup efforts, because of its potential effect on

the responsible party’s financial ability to perform the

cleanup. The $24 million in potential penalties that the contract holds over Teck Cominco’s head not only works as a

hammer, but also as a means by which Teck Cominco can

perform the cleanup or pay the money to the government.

Some polluters, facing a suit for past penalties while cleanup

is ongoing, may simply go bankrupt and leave,46 or use the

threat of bankruptcy as their own hammer to hold over the

EPA’s head. 

Appellants argue that our decision in ARCO Environmental

Remediation, LLC. v. Montana Department of Health & Environmental Quality limits “challenges” to claims that would

dictate specific remedial actions or reporting requirements or

otherwise alter the cleanup plan.47 It does not. In that case,

ARCO, a potentially responsible party, sued a State of Montana agency to get access to documents pertaining to an agreement between the State of Montana and the EPA relating to

a cleanup.48 It was not a citizen suit for penalties, nor did it

affect in any way the ongoing cleanup.49 We held that the lawsuit to obtain access to documents “involves only the public’s

right of access to information about the cleanup,” so it was

not a “challenge.”

50 Appellants would have us parse the word

“incidental” in the decision, and infer a negative pregnant

from the distinction ARCO drew between the suit for documents and several cases where we had held that citizen suits

46See Ingrid Martin, Spark Seeks to Ignite New Markets: Fairbanks

Battery-Maker Earl Romans Takes his Expertise to Russia, Alaska Bus.

Monthly at 56 (June 1992) (describing how a cold-weather battery manufacturer, faced with a $3.2 million Superfund liability, closed his business,

went bankrupt, and left for Russia to manufacture batteries there instead).

47213 F.3d 1108 (9th Cir. 2000). 

48Id. at 1111. 

49See id. at 1115. 

50Id.

PAKOOTAS v. TECK COMINCO METALS 7223
were “challenges.” But our decision in ARCO does not hold,

as appellants argue, that no suit is a “challenge” unless it

seeks to dictate specific remedial actions, to postpone the

cleanup, to impose additional reporting requirements, or to

terminate or alter a cleanup.51 These were the “challenges”

that ARCO distinguished. The holding of ARCO is that a suit

for documents is not a challenge to an ongoing cleanup, not

that challenges are limited to the four cases ARCO distinguishes.52

Finally, if suits for penalties are not “challenges,” Congress

would not have had to make an exception for EPA suits to

recover penalties. The EPA could seek penalties without subsection (h)(2), if penalties were not “challenges.” Subsection

(h)(2) would thus be surplusage if a suit for past penalties

were not a “challenge[ ].”

[8] A citizen suit for penalties is indeed a “challenge[ ] to

removal or remedial action selected by EPA . . . .”

53

(2) Does the penalty exception apply?

Plaintiffs argue alternatively that even if a citizen suit for

penalties while remediation is ongoing is a challenge, the

jurisdiction-stripping statute has an exception for such suits.

They rely on subsection (h)(2),54 quoted in context above. 

Subsection (h)(2) does not apply to citizens suits. Plaintiffs

51Id.

52Id. at 1115-16. 

5342 U.S.C. § 9613(h). 

54The operative words of subsection (h)(2) are as follows: “No Federal

court shall have jurisdiction . . . to review any challenges to removal or

remedial action . . . in any action except one of the following: . . . . (2)

An action to enforce an order issued under section 9606(a) of this title or

to recover a penalty for violation of such order.” 42 U.S.C. § 9613(h)(2)

(emphasis added). 

7224 PAKOOTAS v. TECK COMINCO METALS
argue for a “plain language” reading, and we agree that such

a reading is appropriate. But it does not suffice to only read

the word “penalty.” We must read all of the statutory language, including the word “recover.”

55 That word means, in

this context, to get money. Ordinarily, “recover” “refers to the

getting back of something lost,” or “[t]o receive a favorable

judgment in a lawsuit.”

56 If Pakootas and Michel were the parties entitled to “recover” the penalties for the 892 days of noncompliance, then the exception would apply to them. But they

are not.

[9] The penalty provision speaks to penalties for violation

of orders issued under 42 U.S.C. § 9606(a). Such penalties are

denoted in § 9606(b) as “Fines.”

57 The fines are paid to the

EPA as an enforcement or cost recovery action for the Superfund.58 They are not disbursed to persons claiming to be

injured by the pollution. The statutory scheme provides that

a person who without sufficient cause fails to comply with an

order such as the one at issue in this case “may . . . be fined

. . . for each day.”

59 In appropriate circumstances, reimbursement of the fine or a portion thereof “from the [Super]Fund”

may be sought.60 The penalty money is Superfund money,

payable to the government, not payable to citizens who bring

lawsuits. 

[10] Thus what Pakootas and Michel seek is not a penalty

payable to themselves, but enforcement of a penalty payable

55Id.

56See American Heritage Dictionary 1035 (2d Coll. ed. 1985). 

5742 U.S.C. § 9606(b). 

58See 42 U.S.C. § 9613(h); see also General Electric Co. v. Jackson,

610 F.3d 110, 115 (D.C. Cir. 2010) (“Central to this case, these two

options — comply and seek reimbursement, or refuse to comply and wait

for EPA to bring an enforcement or cost recovery action — are exclusive.”). 

59l42 U.S.C. § 9606(b)(1). 

6042 U.S.C. § 9606(b)(2). 

PAKOOTAS v. TECK COMINCO METALS 7225
to the Superfund. Such a lawsuit is not one to “recover”

money. It is one to compel the payment of money to the

Superfund. If we had jurisdiction, there would be a serious

question as to whether Pakootas and Michel could state a

claim for the EPA to recover money it has chosen not to

recover at this time, but we cannot even consider that question

unless the exception applies, since without the exception, we

lack jurisdiction. 

[11] Citizen suits for specified relief, including penalties,

are provided for in 42 U.S.C. § 9659. That provision subjects

citizen suits to the § 9613(h) exceptions: “Except as provided

. . . in section 9613(h) of this chapter relating to timing.”

61

Section 9613(h)(2) provides an exception to the jurisdictional

bar for actions “to enforce an order issued under section

[9606(a)] of this title or to recover a penalty for violation of

such order.”

62 Thus, this exception to jurisdiction stripping

allows the government to enforce its orders and recover penalties for violation of them even when a cleanup is ongoing.

And only the government has that prerogative.

This statutory scheme becomes much easier to interpret if

we consider the sections together, to figure out what rational

purpose Congress might have had.63 And that purpose, as we

6142 U.S.C. § 9659. 

6242 U.S.C. § 9613(h)(2). 

63See Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process 1378

(William N. Eskridge, Jr. & Philip P. Frickey eds., 1994) (1958); 2 Henry

M. Hart Jr. & Albert M. Sacks, The Legal Process 1414-15 (tent. ed.

1958) (“In determining the more immediate purpose which ought to be

attributed to a statute, and to any subordinate provision of it which may

be involved, a court should try to put itself in imagination in the position

of the legislature which enacted the measure . . . . It should assume, unless

the contrary unmistakably appears, that the legislature was made up of reasonable persons pursuing reasonable purposes reasonably . . . . The court

should then proceed to [ask] . . . Why would reasonable men, confronted

with the law as it was, have enacted this new law to replace it? . . . . The

most reliable guides to an answer will be found in the instances of unques7226 PAKOOTAS v. TECK COMINCO METALS
have said, is to prevent lawsuits that would interfere with the

cleanup process.64 It makes sense that if the polluter is not performing its cleanup duties, then the EPA can swing its hammer without waiting for years until the cleanup is done. It

does not make sense to read the statute as though it allowed

a citizen suit to take away this compliance device before the

cleanup is complete. And that pragmatic arrangement is the

one the words of the statute adopt.

The separate citizen suit exception that Congress provided

to the jurisdiction-stripping statute bolsters this reading. Citizen suits are allowed under subsection (h)(4) for claims that

the remediation itself violates the statute.65 We note that even

in this circumstance, Congress wrote an exception to this citizen suit exception (so that jurisdiction remains absent),

“where a remedial action is to be undertaken at the site.”

66

This careful structuring by Congress would be gutted if a citizen suit could escape the limitations and the exception to the

exception in subsection (h)(4). Yet that is just what plaintiffs

urge, dancing around subsection (h)(4)’s citizen suit provision

and trying to use the different exception in subsection (h)(2).

tioned application of the statute. Even in the case of a new statute there

almost invariably are such instances, in which, because of the perfect fit

of words and context, the meaning seems unmistakable . . . . What is crucial here is the realization that law is being made, and that law is not supposed to be irrational.”). 

64See, e.g., McClellan Ecological Seepage Situation v. Perry, 47 F.3d

325, 330 (9th Cir. 1995). 

65The operative words of subsection (h)(4) are as follows: “No Federal

court shall have jurisdiction . . . to review any challenges to removal or

remedial action . . . in any action except one of the following: . . . . (4)

An action under [42 U.S.C. § 9659] (relating to citizens suits) alleging that

the removal or remedial action taken under [42 U.S.C. § 9604] or secured

under [42 U.S.C. § 9606] was in violation of any requirement of this Act.

Such an action may not be brought with regard to a removal where a remedial action is to be undertaken at the site.” 42 U.S.C. § 9613(h)(4). 

66Id.

PAKOOTAS v. TECK COMINCO METALS 7227
Subsection (h)(4) is the exception for citizen suits. It makes

sense in this statute to apply “the expressio unius, or inclusio

unius, principle.”

67 Subsection (h)(2) is thus for the government, so that it can wield its own hammer during the cleanup

if it deems that prudent, subsection (h)(4) is for citizen suits.

The provisions for a citizen suit in subsection (h)(4) imply

that citizen suits are not allowed under subsection (h)(2).

[12] We have found no circuit court authority to aid us in

this interpretation. Plaintiffs urge us to follow a district court

case from Puerto Rico,68 defendants a (more thoroughly reasoned) district court case from our own circuit.69 We agree

with the conclusion reached in Fairchild Semiconductor

Corp. v. EPA that the (h)(2) exception applies only to “[a]n

action to enforce an order issued under section 9606(a) of this

title or to recover a penalty for violation of such order[,]” and

that only the government may issue orders or recover penalties for violations of those orders under § 9606(a),70 so subsection (h)(2) does not apply to citizens suits. Both sides cite

snippets of language from our decisions in our earlier decision

in this case,71 McClellan Ecological Seepage Situation v.

Perry,

72 and City of Rialto v. West Coast Loading Corp.,73 but

in none of those cases were we faced with deciding whether

citizen suits for penalties fall within the subsection (h)(2)

exception. Now we are. We conclude that they do not.

67Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1312-13 (9th Cir.

1992) (noting that “ ‘when a statute limits a thing to be done in a particular

mode, it includes a negative of any other mode’ ” (quoting Raleigh & Gaston Ry. Co. v. Reid, 80 U.S. 269, 270 (1871))). 

68M.R. (Vega Alta), Inc. v. Caribe General Elec. Products, Inc., 31 F.

Supp.2d 226, 233 (D. Puerto Rico 1998). 

69Fairchild Semiconductor Corp. v. EPA, 769 F. Supp. 1553 (N.D. Cal.

1991), aff’d, 984 F.2d 283 (9th Cir. 1993). 

70Id. at 1560-61. 

71Pakootas I, 452 F.3d 1066 (9th Cir. 2006). 

7247 F.3d 325 (9th Cir. 1995). 

73581 F.3d 865 (9th Cir. 2009). 

7228 PAKOOTAS v. TECK COMINCO METALS
III. Conclusion

[13] As the district court correctly concluded, it lacked

jurisdiction to adjudicate the Pakootas and Michel claims for

penalties for the 892 days of noncompliance with the unilateral administrative order, and properly dismissed their claims.

AFFIRMED. 

PAKOOTAS v. TECK COMINCO METALS 7229