IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

CONFEDERATED TRIBES AND BANDS

OF THE YAKAMA NATION,

Plaintiff,

v.

UNITED STATES OF AMERICA;

DEPARTMENT OF THE ARMY; and

ARMY CORPS OF ENGINEERS,

Defendants.

3:14-CV-01963-PK

 

ORDER 

BROWN, Judge.

Magistrate Judge Paul Papak issued Findings and

Recommendation (#33) on December 18, 2015, in which he recommends

the Court grant in part and deny in part Plaintiff Confederated

Tribes and Bands of the Yakima Nation’s Motion (#21) for Summary

Judgment and deny Defendants’ Motion (#27) for Summary Judgment.

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Plaintiff and Defendants filed timely Objections to the Findings

and Recommendation. The matter is now before this Court pursuant

to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure

72(b).

When any party objects to any portion of the Magistrate

Judge's Findings and Recommendation, the district court must make

a de novo determination of that portion of the Magistrate Judge's

report. 28 U.S.C. § 636(b)(1). See also Dawson v. Marshall, 561

F.3d 930, 932 (9th Cir. 2009); United States v. Reyna-Tapia, 328

F.3d 1114, 1121 (9th Cir. 2003)(en banc). 

I. Defendants’ Objections 

In their Objections Defendants reiterate the arguments

contained in their Motion for Summary Judgment, their Reply in

support of their Motion for Summary Judgment, and in their

assertions at oral argument. This Court has carefully considered

Defendants’ Objections and concludes they do not provide a basis

to modify the Findings and Recommendation. The Court also has

reviewed the pertinent portions of the record de novo and does

not find any error in the Magistrate Judge's Findings and

Recommendation.

II. Plaintiff’s Objections

Plaintiff objects to the Magistrate Judge’s recommendation

to deny Plaintiff’s Motion for Summary Judgment as to its claim

for declaratory judgment on the grounds that issuing a

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declaratory judgment is not discretionary and uncertainty

surrounding future response costs does not preclude declaratory

judgment.

In its Complaint Plaintiff asserts two claims: (1) a costrecovery claim under the Comprehensive Environmental Response,

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

and (2) a claim for declaratory judgment establishing Defendants'

liability for Plaintiff’s future CERCLA response costs.

The Magistrate Judge found Plaintiff’s oversight costs and

funding costs are “response costs” caused by the release or

threatened release of a hazardous substance and “not inconsistent

with the National Contingency Plan (NCP). Accordingly, the

Magistrate Judge recommended granting Plaintiff’s Motion for

Summary Judgment as to those costs. The Magistrate Judge,

however, found a genuine dispute of material fact exists as to

whether Plaintiff’s costs associated with the adoption of the

regulation prohibiting fishing in the vicinity of Bradford Island

are recoverable response costs under CERCLA. The Magistrate

Judge, therefore, recommended denying Plaintiff’s Motion for

Summary Judgment as to those costs. Finally, the Magistrate

Judge reiterated CERCLA imposes liability on Defendants for

Plaintiff’s response costs only when those costs are caused by

Defendants' release or threatened release of a hazardous

substance and when Plaintiff’s response activities are “not

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inconsistent with” the NCP. The Magistrate Judge found:

Because the court cannot predict to a legal

certainty the exact nature or cause of the Tribe's

future response activities, it cannot adjudicate

Defendants liable for all of the Tribe's future

response costs as a matter of law. That said,

depending on the facts surrounding Yakama Nation's

future response costs, preclusion principles may

significantly limit Defendants' ability to contest

their liability for those costs.

Findings and Recommendation at 14. Plaintiff objects only to

this final finding and the recommendation that this Court deny

Plaintiff’s Motion for Summary Judgment as to Plaintiff’s claim

for declaratory judgment.

Plaintiff notes CERCLA provides “the court shall enter a

declaratory judgment on liability for response costs or damages

that will be binding on any subsequent action or actions to

recover further response costs or damages.” 42 U.S.C. 

§ 9613(g)(2)(emphasis added). Accordingly, a successful CERCLA

plaintiff is not required to re-try a polluter’s liability when

the plaintiff incurs response costs in the future. The Ninth

Circuit has held when “a plaintiff successfully establishes

liability for the response costs sought in the initial

cost-recovery action, it is entitled to a declaratory judgment on

present liability that will be binding on future cost-recovery

actions.” City of Colton v. Am. Promotional Events, Inc.-West,

614 F.3d 998, 1007 (9th Cir. 2010)(emphasis added). As the Ninth

Circuit has explained:

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These [response-cost] sections [of CERCLA]

envision that, before suing, CERCLA plaintiffs

will spend some money responding to an

environmental hazard. They can then go to court

and obtain reimbursement for their initial

outlays, as well as a declaration that the

responsible party will have continuing liability

for the cost of finishing the job.

In re Dant & Russell, Inc., 951 F.2d 246, 249-50 (9th Cir. 1991). 

CERCLA § 113(g)(2), therefore, “mandates collateral estoppel

effect to a liability determination.” United States v. Hobson,

No. CV07-282-S-EJL, 2010 WL 255971, at *9-10 (D. Idaho Jan. 15,

2010)(citation omitted).

In its Objections Plaintiff makes clear it is only seeking a

declaratory judgment as to Defendants’ liability, which is

permitted by CERCLA, and not seeking a determination regarding

the “nature or cause of [its] future response activities” as the

Magistrate Judge suggests. See, e.g., United Alloys, Inc. v.

Baker, 797 F. Supp. 2d 974, 1003 (C.D. Cal. 2011)(“CERCLA

expressly provides for declaratory actions for determining

liability as to future response costs.”); Voggenthaler v.

Maryland Square LLC, 724 F.3d 1050, 1064-65 (9th Cir. 2013). 

Plaintiff concedes even if the Court enters a declaratory

judgment of liability, Plaintiff “will still be required, in any

future action, to demonstrate that the actions for which it is

seeking its costs are response actions under CERCLA.” The Court

agrees. 

Accordingly, the Court declines to adopt the Magistrate

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Judge’s recommendation to deny Plaintiff’s Motion for Summary

Judgment as to Plaintiff’s request for declaratory judgment.

CONCLUSION

The Court ADOPTS as modified Magistrate Judge Papak’s

Findings and Recommendation (#33) as follows:

1. The Court DENIES Defendant’s Motion (#27) for Summary

Judgment.

2. The Court GRANTS Plaintiff’s Motion (#21) for Summary

Judgment as to its oversight and funding costs and its

claim for declaratory judgment as to Defendants’

liability for future response costs.

3. The Court DENIES Plaintiff’s Motion (#21) for Summary

Judgment as to Plaintiff’s costs associated with the

adoption of the regulation prohibiting fishing in the

vicinity of Bradford Island. 

The only issues remaining for trial are (1) the amount of

Plaintiff’s response costs attributable to its oversight and

funding activities and (2) whether the costs Plaintiff incurred

to adopt the regulation prohibiting fishing in the vicinity of

Bradford Island were caused by the release of hazardous 

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substances from Bradford Island.

IT IS SO ORDERED.

DATED this 1st day of February, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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