NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ASARCO LLC, 

Plaintiff-Appellant, 

 v. 

UNION PACIFIC RAILROAD 

COMPANY, a Utah corporation, 

Defendant-Appellee.

No. 18-35713 

D.C. No. 2:12-cv-00283-EJL 

MEMORANDUM*

Appeal from the United States District Court

for the District of Idaho

Edward J. Lodge, District Judge, Presiding

Argued and Submitted July 9, 2019

Seattle, Washington

Before: WATFORD and MILLER, Circuit Judges, and ROTHSTEIN,** District 

Judge.

ASARCO LLC brought this action against Union Pacific Railroad Company

under section 113(f) of the Comprehensive Environmental Response, 

Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9613(f), seeking

 

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

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Barbara Jacobs Rothstein, United States District Judge 

for the Western District of Washington, sitting by designation.

FILED

JUL 17 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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contribution for cleanup costs at the Coeur d’Alene Superfund Site. Following a 

bench trial, the district court entered judgment in favor of Union Pacific, 

concluding that (1) Asarco did not meet its burden under section 113(f) to show 

that it paid more than its proportionate share of cleanup costs and (2) Asarco 

released its claim through a settlement agreement with Union Pacific. Asarco now 

appeals. We have jurisdiction under 28 U.S.C. § 1291, and we affirm because the 

agreement released Asarco’s claim. We therefore need not address the district 

court’s alternative holding based on section 113(f).

In the settlement agreement, which the parties agree is governed by Texas 

law, Asarco agreed to release “any and all damages, losses, expenses, costs, 

liabilities, claims, demands, suits, causes of action, and complaints, of any kind, 

character or description, in law or in equity, whether known or unknown, arising 

out of or in any way connected with . . . Remaining Sites Costs.” The agreement 

defined “Remaining Sites Costs” to include “claims for contribution and indemnity 

for past and future costs of response under CERCLA incurred by [Union Pacific] 

at” the Coeur d’Alene Superfund Site.

Previously, on appeal from the district court’s dismissal of this action under

Federal Rule of Civil Procedure 12(b)(6), we considered whether the agreement’s 

plain language released Asarco’s claim. ASARCO LLC v. Union Pac. R.R. Co., 765 

F.3d 999 (9th Cir. 2014). We determined that the agreement was ambiguous. Id. at 
3 

1009. Emphasizing that the agreement refers to costs “incurred by” Union Pacific, 

we explained that it could be read to mean “that Asarco’s contribution claim 

against Union Pacific is released because the claim is broadly related to CERCLA 

response costs incurred by Union Pacific,” but it “could also plausibly mean that 

Asarco’s contribution claim against Union Pacific is reserved, not released, 

because the claim only relates to response costs incurred by Asarco.” Id. We 

concluded that “interpretation of the agreement presents a fact issue that cannot be 

resolved on a motion to dismiss,” and we remanded so the district court could 

consider “evidence of the surrounding circumstances.” Id. (citation omitted); see 

David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 450–51 (Tex. 2008) (in construing 

an ambiguous contract, courts may consider extrinsic evidence to determine the 

parties’ intent).

On remand, the district court conducted a 13-day bench trial during which

the parties presented testimonial and documentary evidence, including extrinsic 

evidence of the parties’ intent. The court found that “Union Pacific’s interpretation 

of the contract is the most reasonable in this case given the communications

between the parties and circumstances at the time.”

“The intent of the parties at the time a contract is executed is a question of 

fact for the trial court,” and “[i]n a nonjury trial, the court’s findings of fact will 

not be disturbed unless found to be clearly erroneous.” In re U.S. Fin. Sec. Litig., 
4 

729 F.2d 628, 632 (9th Cir. 1984) (internal quotations and citation omitted). Here, 

the record reveals no clear error in the district court’s finding.

Asarco objects that the district court based its conclusion, in part, on the 

language of the settlement agreement. According to Asarco, the district court erred 

because it concluded, contrary to this court’s mandate, that “the language is 

sufficiently clear to be interpreted without extrinsic evidence.” But the district 

court did no such thing. To the contrary, the district court carefully considered the 

extrinsic evidence presented at trial, including emails and letters between the 

parties during negotiations, and it evaluated conflicting witness testimony.

The record supports the district court’s finding. To be sure, the evidence did 

not show that the parties specifically considered whether the release would cover

this particular claim. But under Texas law, a valid release need not “anticipate and 

identify each potential cause of action relating to the release’s subject matter,” and 

it “may encompass unknown claims.” Keck, Mahin & Cate v. Nat. Union Fire Ins. 

Co., 20 S.W.3d 692, 698 (Tex. 2000). And the district court identified evidence 

showing that the parties intended a global resolution of all claims between them, a

resolution that Asarco’s interpretation would frustrate.

For example, during the negotiation of the agreement, Asarco’s attorney sent 

a letter to Union Pacific’s attorney, stating that “Asarco is prepared to resolve all 

claims between it and [Union Pacific],” including claims related to the “Coeur 
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d’Alene and Bunker Hill Idaho Sites” and subject to “mutual releases.” The same

attorney later emailed Union Pacific’s attorney, stating that she was seeking “to get 

[Union Pacific] a comprehensive offer on all issues.” Further, the district court 

appropriately considered Asarco’s failure to disclose its CERCLA contribution 

claim against Union Pacific in a draft plan of bankruptcy reorganization after it 

executed the settlement agreement. See Henshaw v. Tex. Nat. Res. Found., 216 

S.W.2d 566, 570 (Tex. 1949) (courts may consider a party’s post-contract

performance as evidence of its intent).

Asarco notes that it presented evidence that might have supported a contrary 

conclusion. But “[c]lear error is not demonstrated by pointing to conflicting 

evidence in the record.” United States v. Frank, 956 F.2d 872, 875 (9th Cir. 1991).

AFFIRMED.