Appeal from the United States District Court for the Eastern District of Washington Lonny R. Suko, Chief District Judge, Presiding D.C NO 2:04-cv-00256-LRS; D.C. No.2:04-cv-00256-LRS.
The opinion of the court was delivered by: Kleinfeld, Circuit Judge:
Argued and Submitted November 6, 2009-Seattle, Washington
Before: Arthur L. Alarcon, Andrew J. Kleinfeld, and Richard R. Clifton, Circuit Judges.
Opinion by Judge Kleinfeld
We address citizen suit jurisdiction under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
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.*fn1 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.*fn2 The EPA completed its investigation in 2003, determining that the Upper Columbia River site was eligible for inclusion on CERCLA's National Priorities List.*fn3 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.*fn4
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.*fn5 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.*fn6 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.*fn7 Teck Cominco did not comply with the order.*fn8 The EPA took no action to enforce it.*fn9
Plaintiffs Joseph A. Pakootas and Donald R. Michel sued Teck Cominco to enforce the EPA's unilateral administrative order.*fn10 They founded jurisdiction on the citizen suit provision of CERCLA,*fn11 seeking: (1) a declaration that Teck Cominco was in violation of the order; (2) an injunction compelling compliance; (3) penalties for Teck Cominco's failure to comply; and (4) attorneys' fees and costs.*fn12
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.*fn13 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.*fn14
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."*fn15 The unilateral administrative order, we held, was addressed to this "facility" within the State of Washington.*fn16 We did not reach the ques- tion of whether Congress intended CERCLA to apply extraterritorially.*fn17
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.*fn18
Meanwhile, Teck Cominco had petitioned for certiorari from our decision. The Supreme Court, evidently considering the petition quite seriously, invited the Solicitor General to 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.*fn19
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 ...