E Bay Muni Util Dist v. COMM

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 17, 1998 Decided May 1, 1998

No. 97-5079

East Bay Municipal Utility District,

Appellant

v.

United States Department of Commerce, et al.,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 93cv01715)

Andrew L. Lipps argued the cause for appellant. With

him on the briefs were Leonard A. Miller and William J.

Mertens.

Joan M. Pepin, Attorney, U.S. Department of Justice,

argued the cause for appellees. With her on the brief were

Lois J. Schiffer, Assistant Attorney General, Edward J. Sha-

waker and Martin F. McDermott, Attorneys. John T. Stahr,

Attorney, entered an appearance.

Before: Williams, Henderson and Garland, Circuit

Judges.

Opinion for the Court filed by Circuit Judge Williams.

Williams, Circuit Judge: The East Bay Municipal Utility

District (the "District") found itself saddled with the costs of

cleaning up hazardous waste from an abandoned mine site,

Penn Mine, in Northern California. As owner of part of the

site, which it acquired in developing its reservoir system,

the District had become responsible for these costs under

CERCLA, the Comprehensive Environmental Response,

Compensation, and Liability Act, 42 U.S.C. s 9601 et seq.

Understandably interested in finding another source of funds

to share the burden, the District claimed that the federal

government was responsible for the waste as an "operator" of

the mine, pursuant to CERCLA s 9607(a)(1), or alternatively

as an "arranger" of the mine's wastes, pursuant to

s 9607(a)(3). Although hands-on control of the mine was

exercised at all relevant times by Eagle Shawmut Mine

("Shawmut"), a partnership that leased the mine from Penn

Mining Company, the District claims that the government

stepped into the "operator" and "arranger" roles through a

variety of measures it employed during and shortly after

World War II, all aimed at assuring the production of zinc, a

critical ingredient in armaments.

The government's activities are set forth in great detail in

the district court opinion, East Bay Mun. Util. Dist. v.

United States Dep't of Commerce, 948 F. Supp. 78 (D.D.C.

1996), and we will return to them later. For now it is enough

to say that its interventions took two fundamental forms.

First, it offered Shawmut incentives, in the form of a pur-

chase agreement at premium prices (prices in excess of

otherwise applicable wartime price controls), accompanied by

a loan to finance the mine's reopening. Second, it lowered

the opportunity costs of operating the mine as a zinc supplier

by restricting the alternative use of both natural and human

resources needed for production. This second class of inter-

ventions included strict limits on the use of mines for produc-

tion of gold and regulations tending to lock workers into the

mining industry generally and to funnel them specifically

towards favored facilities such as Penn Mine.

The United States defended on the grounds that

CERCLA's provision for waiver of the federal government's

sovereign immunity, s 9620(a)(1), precluded considering any

of its regulatory activities--i.e., the price and labor controls,

the restrictions on gold mining--in the calculus of whether it

had been an operator. The government also argued that,

even if its regulatory activities were considered, its involve-

ment in the mine did not place it in the role of an operator or

arranger. On cross-motions for summary judgment based on

jointly agreed facts, the district court rejected the govern-

ment's narrow construction of the waiver but nonetheless

found it not to have become an operator or arranger. 948

F. Supp. at 79. The District appeals the denial of the

operator liability claim.

We affirm. We hold that the waiver of immunity contained

in s 9620(a)(1) is coextensive with the scope of the substan-

tive liability standards of CERCLA. Here, however, the

government's actual involvement did not constitute "oper-

at[ion]" of Penn Mine under either the prevailing "actual

control" or the alternative "authority to control" interpreta-

tion of that term.

* * *

CERCLA's waiver of immunity for the federal government,

located in a section dealing with "Federal facilities," provides

that:

Each department, agency, and instrumentality of the

United States (including the executive, legislative, and

judicial branches of government) shall be subject to, and

comply with, this chapter in the same manner and to the

same extent, both procedurally and substantively, as any

nongovernmental entity, including liability under section

9607 of this title.

42 U.S.C. s 9620(a)(1). In turn, s 9607(a)(2) establishes lia-

bility for all remediation costs resulting from the release of a

hazardous substance, for "any person who at the time of

disposal of any hazardous substance owned or operated any

facility at which such hazardous substances were disposed of."

Thus, CERCLA clearly exposes the federal government to

suit and potential liability for at least some cases in which it

operated a facility that discharged hazardous waste. See

Pennsylvania v. Union Gas Co., 491 U.S. 1, 10 (1989),

overruled on other grounds by Seminole Tribe of Florida v.

Florida, 517 U.S. 44 (1996).

The District contends that s 9620's waiver of sovereign

immunity extends to any instance in which the federal gov-

ernment may be deemed to have operated a facility, regard-

less of whether the government acted in a regulatory or in a

proprietary capacity. The government reads the waiver as

leaving it immune for acts performed in a regulatory capacity.

This alleged residual immunity, of course, is relevant only for

acts that are otherwise "operational," i.e., acts that would

make a private actor an "operator" of a facility. On the

government's theory, Congress has waived immunity under

CERCLA only for those activities which could be performed

by "any nongovernmental entity," but has retained immunity

for such "uniquely and inherently sovereign" activities as

imposing the price and labor regulations which are part of the

basis of the District's operator claim here. It relies on the

general principle that waivers of sovereign immunity are to

be construed narrowly, including waivers likening the govern-

ment's liability to that of a private party. See, e.g., Library

of Congress v. Shaw, 478 U.S. 310, 318 (1986) (saying, in

analysis of clause making the government liable for costs "the

same as a private person," that "we must construe waivers

strictly in favor of the sovereign, and not enlarge the waiver

beyond what the language requires") (internal citations and

punctuation omitted); Laird v. Nelms, 406 U.S. 797 (1972)

(construing FTCA waiver of immunity under which the gov-

ernment, "if a private person, would be liable," not to reach

ultrahazardous strict liability claims, although private party

would be liable under common law).

Because the terms of the government's consent to be sued

in any court "define that court's jurisdiction to entertain the

suit," United States v. Sherwood, 312 U.S. 584, 586 (1941), the

claim of immunity is jurisdictional. Here, however, the waiv-

er clause does not preclude our jurisdiction to entertain the

suit, for as the government acknowledges, and as is plain, the

clause waives the government's immunity at least insofar as

the District's claim is grounded in such typically private

activities as the financing of the mine and the purchasing of

zinc.

Our circuit has sometimes been ready to resolve a suit on

the merits against a party asserting jurisdiction, where the

merits issue was a no-brainer and the jurisdictional issue

quite difficult. See, e.g., Cross-Sound Ferry Services, Inc. v.

I.C.C., 934 F.2d 327, 333 (D.C. Cir. 1991); but see id. at 339

(Thomas, J., concurring) (rejecting majority's choice to dis-

pose of claim on merits rather than to treat threshold juris-

dictional issue). The Supreme Court has recently rejected

that practice. See Steel Company v. Citizens for a Better

Environment, 118 S. Ct. 1003, 1012-16 (1998). We are

uncertain whether Steel Company's holding requires us to

resolve the government's waiver claim first, when, as here,

even the merits evidence that would be excluded under the

government's waiver theory comes nowhere near establishing

liability, and when we are certain of our jurisdiction over the

suit itself. Nonetheless, the more cautious approach is first

to tackle the government's theory on the limits of the immuni-

ty waiver.

It is true that there is a potential ambiguity in

s 9620(a)(1)'s qualifying clause, "in the same manner and to

the same extent ... as any nongovernmental entity." "[A]s

any nongovernmental entity" can either be read broadly, to

deprive the government of any immunity or defense not

enjoyed by a nongovernmental entity that otherwise meets

the criteria of s 9607; or, it can be read narrowly, as the

government contends, so that it is liable for actions that

trigger liability under s 9607--owning or operating a facility,

or arranging for waste disposal--only when it performs those

actions through the "proprietary" powers it shares with pri-

vate entities, such as by exercising contractual or property

rights.

Under the government's view, it would be liable when it

exercised the sort of direct and detailed control that renders

someone an operator through contract and property arrange-

ments but not when it exercised identical control powers

through coercive, administrative measures. As we under-

stand this position, the government would be liable in the

proprietary case even if (as would be typical, we suppose) its

ability to exercise the controls through proprietary means

ultimately flowed from its use of the sovereign tax power to

fund the acquisition of the pertinent property rights or the

fulfillment of its contract obligations.

But the language of s 9620(a)(1) does not welcome the

government's reading. By providing that the government is

liable "in the same manner and to the same extent, both

procedurally and substantively, as any nongovernmental enti-

ty" whenever it satisfies the criteria of s 9607, it does not on

its face suggest a distinction between the exercise of private

(what we are calling "proprietary") and regulatory powers.

Further, CERCLA's strong tendency to focus on the sub-

stance of the government's (or any entity's) activities, rather

than their form, cuts against the government's view. This

comparative disregard for the formal relationships between

the potentially responsible party and the facility is manifest in

the very imposition of liability upon the category of "opera-

tors," whose role is defined functionally, not in terms of "the

legal structure of ownership." See United States v. Kayser-

Roth Corp., Inc., 910 F.2d 24, 26 (1st Cir. 1990); see also

Schiavone v. Pearce, 79 F.3d 248, 253-54 (2d Cir. 1996).1

Similarly, CERCLA excludes from "owner or operator" liabil-

ity a secured creditor who holds "indicia of ownership" pri-

__________

1 The Supreme Court is now considering the criteria for a parent

corporation's liability as "operator" where primary operational con-

marily to protect its security interest but does not "partic-

ipat[e] in the management of a vessel or facility," 42 U.S.C.

s 9601(20)(A); participation in management is in turn defined

as "actually participating in the management or operational

affairs of a vessel or facility." 42 U.S.C. s 9601(20)(E), (F)(i)

(emphasis added), as amended by Asset Conservation, Lend-

er Liability, and Deposit Insurance Protection Act of 1996,

Pub. L. No. 104-208, Tit. II, s 2502(b), 110 Stat. 3009-464;

see also In re Bergsoe Metal Corp., 910 F.2d 668, 672 (9th

Cir. 1990) (interpreting pre-amendment definition to same

effect).

A difficulty with anything other than a straightforward

reading of the immunity waiver is the uncertainty entailed by

the government's reading. As the Supreme Court has noted

in the context of the Federal Tort Claims Act, 28 U.S.C.

s 2680, it is "hard to think of any governmental activity on

the 'operational level,' 2 ... which is 'uniquely governmental,'

in the sense that its kind has not at one time or another been,

or could not conceivably be, privately performed." Indian

Towing Co. v. United States, 350 U.S. 61, 68 (1955). The

converse is also true--it is hard to imagine any act that might

lead to a finding of government "operator" liability that could

not be recharacterized at a higher level of abstraction as a

uniquely governmental activity. For example, in reading

s 9620(a)(1) to provide only a limited waiver of the govern-

ment's immunity, the dissent in FMC Corp. v. United States

Dep't of Commerce, 29 F.3d 833 (3d Cir. 1994), defined the

government's activities at issue there as uniquely governmen-

tal, characterizing them in terms of the ultimate purpose for

which they were performed--"winning a war." Id. at 847.

__________

trol is exercised by a subsidiary. See United States v. Cordova

Chemical Co. of Mich., 113 F.3d 572 (6th Cir. 1997), cert. granted

sub nom. United States v. CPC Int'l, Inc., 118 S. Ct. 621 (1997).

2 The term "operational" is used by the Court here in contradis-

tinction to activities excluded from liability by the "discretionary

function" exception to the FTCA's waiver. See, e.g., United States

v. Gaubert, 499 U.S. 315 (1991).

We do not wish to overstate this point; the special treatment

of state governments' proprietary activities under the nega-

tive commerce clause, see, e.g., South-Central Timber v.

Wunnicke, 467 U.S. 82 (1984), appears to have proven worka-

ble. But the FMC case at least suggests a nontrivial poten-

tial for confusion.

Furthermore, s 9607(d)(1) of the Act confers a defense on

"all persons" "for costs or damages as a result of actions

taken or omitted in the course of rendering care, assistance,

or advice in accordance with the National Contingency Plan,"

but does "not preclude liability for costs or damages as the

result of negligence." As it appears that such activities are

primarily or exclusively governmental, creation of the defense

suggests a congressional assumption that immunization of

specific purely governmental activities required a specific

provision. See 42 U.S.C. s 9605(a)(4); see also 40 CFR

ss 300.110, 300.115(b) (identifying membership of national

and regional "response teams")

Section s 9607(d)(2) affords modest additional light. It

gives state and local governments a partial defense against

claims arising from their emergency remediation efforts, lim-

iting their liability to cases of gross negligence or intentional

misconduct. Both the majority and dissent in FMC reasoned

that this provision bolstered their interpretations. But both

assumed a proposition that was already embedded in Third

Circuit law, that the federal government waiver does not

embrace pollution caused by the federal government's hazard-

ous waste "clean-up" efforts. Compare 29 F.3d at 841 with

id. at 848 n.2. We have never addressed that issue, so our

circuit law contains no such premise, and resolving the issue

would carry us far from this case. Thus the differing analy-

ses voiced in the Third Circuit do not seem relevant in our

context. We think the special exception tends to cut against

the government's theory. CERCLA abrogates state and

local government immunity in terms virtually identical to the

waiver of federal immunity, see 42 U.S.C. s 9601(20)(D), so

the exclusion of liability for emergency remediation efforts

seems to imply a background assumption that the waiver

would otherwise extend to such a typical governmental activi-

ty.

Finally, although the precise meaning of s 9620(a)(1)'s

waiver language was not directly before the Court in Union

Gas Co., 491 U.S. 1, it characterized s 9601(20)(D), the almost

identically worded provision subjecting states to liability, as

"unequivoca[l]" and "unqualified," 491 U.S. at 10, indicating

that the statute's most authoritative reader may not be

inclined to view the waiver as hedged by unwritten excep-

tions.

In reaching this conclusion we do not at all rely on one

argument urged by the District, namely, that the "remedial"

nature of CERCLA warrants broad governmental liability.

Compare FMC, 29 F.3d at 840-41. We have recently ex-

pressed our general doubts about the canon that "remedial

statutes are to be construed liberally," since virtually any

statute is remedial in some respect. See Ober United Travel

Agency, Inc. v. United States Dep't of Labor, 135 F.3d 822,

825 (D.C. Cir. 1998). To paraphrase Judge Bork, who was

referring to the "scarcity" rationale for broadcast regulation:

Since [remedial character] is a universal fact, it can

hardly explain [liberal construction] in one context and

not another. The attempt to use a universal fact as a

distinguishing principle necessarily leads to analytical

confusion.

Telecommunications Research and Action Center v. FCC,

801 F.2d 501, 508 (D.C. Cir. 1986). Moreover, the canon

appears to assume a unidirectional statutory purpose, so that

the "liberal" interpretation would be the one best effecting

that sole purpose. But in fact statutes necessarily reflect a

legislative balancing of competing purposes. See, e.g., Rodri-

guez v. United States, 480 U.S. 522, 525-26 (1987). Here, for

example, it is unclear why shifting part of the clean-up cost

from one pocket (the District) to another (the United States)

is especially "liberal." Of course proliferation of accessible

pockets might help clean up hazardous waste and spread risk;

the federal government's pockets are deep and it is a risk-

spreader without peer. But in some situations the statute

explicitly calls for reimbursement of the United States for

clean-up costs it incurs, see 42 U.S.C. s 9607(a)(A), making

clear the presence of additional purposes. Cf. Edward Hines

Lumber Co. v. Vulcan Materials Co., 861 F.2d 155, 157 (7th

Cir. 1988).

We thus at last reach the question of whether the govern-

ment's acts in relation to Penn Mine, including the regulatory

and the potentially private acts pointed to by the District,

made the government the mine's operator.

* * *

CERCLA defines "owner or operator" at s 9601(20)(A)(ii),

as "in the case of an onshore facility or an offshore facility,

any person owning or operating such facility." As the Sev-

enth Circuit has said of this virtually circular definition, "the

statutory terms have their ordinary meanings rather than

unusual or technical meanings." Hines Lumber Co., 861 F.2d

at 156. Standard dictionary representations of ordinary lan-

guage tell us that to "operate" means to "direct the working

of; to manage, conduct, work (a railway, business, etc.)," or

"to manage and put or keep in operation whether with

personal effort or not." The Oxford English Dictionary (2d

ed. 1989); Webster's Third New International Dictionary

(1967). These match our own understandings. The appear-

ance of "manage" in both definitions is unsurprising, and

conjures up a person or party exercising hands-on control.

The dominant explication of the language, adopted by the

First, Second, Third, Fourth, Sixth, Seventh, Eighth, Ninth,

and Eleventh Circuits, has looked to actual control, seeing an

"operator" as someone actively involved in running the facili-

ty, typically on a day-to-day, managerial basis. See, e.g.,

United States v. Cordova Chemical Co. of Mich., 113 F.3d

572, 579-81 (6th Cir. 1997); Redwing Carriers, Inc. v. Sara-

land Apts., 94 F.3d 1489, 1504-05 (11th Cir. 1996); Schia-

vone, 79 F.3d 248, 253-54 (2d Cir. 1996); United States v.

Gurley, 43 F.3d 1188, 1193 (8th Cir. 1994); John S. Boyd Co.,

Inc. v. Boston Gas Co., 992 F.2d 401, 408 (1st Cir. 1993);

Lansford-Coaldale Joint Water Auth. v. Tonolli Corp., 4 F.3d

1209, 1220-22 (3rd Cir. 1993); Joslyn Manuf. Co. v. T.L.

James & Co., Inc., 893 F.2d 80, 83 (5th Cir. 1990); Hines

Lumber Co., 861 F.2d at 157-59 (7th Cir. 1988); cf. In re

Bergsoe Metal Corp., 910 F.2d 668, 672 (9th Cir. 1990)

(addressing secured creditor provision). But the Fourth Cir-

cuit has opted for a broader interpretation of "operator,"

taking it to include not only those persons with actual control

over a facility, but also "a party who possessed the authority

to abate the damage caused by the disposal of hazardous

substances but who declined to actually exercise that authori-

ty by undertaking efforts at a cleanup." Nurad, Inc. v.

Langrall & Sons, 966 F.2d 837, 842 (4th Cir. 1992). As we

shall explain, we find the District's claim inadequate even

under the authority-to-control test, and thus need not make a

final choice between the two interpretations.

Looking first for the exercise of any managerial control, we

find none. The detailed facts are set forth, as we have said,

in the district court's opinion, and also in the Revised Joint

Statement of the Parties ("R.S."). First, the price restric-

tions imposed by the government on the zinc market, while

intended (in part) to protect its own efforts to acquire zinc for

munitions production, did not amount to operation of any

mining facility. This is not changed by the fact that the

government allowed increments above the base controlled

price for production in excess of the controlled levels. These

steps represent a standard governmental device for reconcil-

ing an interest in keeping prices low (here, to make the war

effort cheaper) with the conflicting interest in generating an

adequate supply. They are, of course, variations on the ways

a private buyer might offer special price advantages to gener-

ate a supply that would otherwise be unavailable, but they do

not bring the government as buyer one whit closer to mana-

gerial control.

Second, the government's regulations governing labor mo-

bility and hours, while they may have made continuation of

operations easier for the mine operators by reducing the

miners' potential rewards in alternative fields, and conceiv-

ably by extracting more work per dollar than would otherwise

have been extractable, did not give the government the kind

of direct managerial or supervisory authority over Penn's

workforce that is a crucial component of operator liability

under the actual control test. See United States v. Vertac

Chemical Corp., 46 F.3d 803, 809 (8th Cir. 1995); Hines

Lumber Co., 861 F.2d at 158; United States v. Dart Indus.,

Inc., 847 F.2d 144, 146 (4th Cir. 1988). Compare FMC, 29

F.3d at 843 (majority asserting government "participat[ion] in

the management and supervision of the labor force") with id.

at 853 (dissent asserting that government merely helped

employees overcome shortages of housing and community

services and assisted the firm in reducing labor strife and

absenteeism).

Third, the government's financial backing of the mine,

which appears to have been made as an advance against

Shawmut's sales, was not sufficient to suggest control. Sec-

tion 9601(20)(A)'s exemption from owner liability for non-

managing security interest holders is again relevant here.

Without "actually participating in the management or opera-

tional affairs of a vessel or facility," s 9601(20)(F)(i)(I), no

mere financial backer--even one holding title to a facility as

security for debt--is liable under CERCLA; see also In re

Bergsoe Metal Corp., 910 F.2d at 671. Mere unsecured

credit, unaccompanied by the "actual" managerial control

needed for a secured creditor, clearly cannot give rise to

operator liability.

Fourth, entering into an output contract does not make the

government an operator. The output contract between the

U.S. and Penn Mine merely reflected the monopsonistic war-

time market and the willingness of the government to pay

substantial premiums in order to meet its metals needs.

Hines Lumber Co. is pertinent again. An operating compa-

ny, itself clearly responsible under CERCLA, sought to bring

into the ring of CERCLA liability the firm that had supplied

it with its key chemical input. The supplier had the contrac-

tual power to inspect the production process for quality

control purposes, since the product was to be sold under that

firm's trademark. But the supplier had no control of the

work, no right to choose employees or to direct their activi-

ties. It thus had no operating control. 861 F.2d at 158.

Whether taken severally or jointly, these factors do not

support the District's claim of actual governmental control.

We now return to the possibility of liability through mere

authority to control. There are two aspects of the relation-

ship between the government and Shawmut from which one

might spin such a theory. First, the War Production Board

had contingent authority to seize any production facilities. In

the early phases of World War II this was limited to facilities

that refused to supply goods or refused to do so at reasonable

prices; authority was later added to seize facilities that failed

to produce because of labor stoppages. See R.S. WW 28-33.

(Here we assume, in favor of the District, the correctness of

its analysis of the controlling statutes.3) But whatever the

scope or statutory validity of an "authority to control" test,

we do not see how (subject to a qualification discussed below)

it could encompass a contingent authority that was never

triggered.

Alternatively one could devise an "authority" claim from

provisions in the purchase-and-loan contract between the

__________

3 In fact the District's reading seems correct. Section 9 of the

Selective Training and Service Act of 1940, Ch. 720, 54 Stat. 892

(1940), imposed on firms an obligation to comply with the Presi-

dent's orders "for such product or material as may be required,"

and authorized him to seize plants that refused to produce or

refused to do so at reasonable prices. This authority was expanded

in 1943 to include authority to seize facilities useful to the war effort

in case of labor stoppage. War Labor Disputes Act, Ch. 144, 57

Stat. 164, s 3 (1943).

United States (in the guise of the Metals Reserve Corpora-

tion) and Shawmut. But that contract granted the govern-

ment only the right "to inspect said Mine and said Mill and to

examine and audit, or cause to have examined and audited,

any of [Shawmut's] books and records." These inspection

rights carried with them no managerial prerogatives or au-

thority. Further, the contract explicitly assigned to Shawmut

full responsibility for the mine's "dewatering," "rehabilita-

tion," "conversion," and "operat[ion]," in conformity with

"good mining and engineering practice." True, the contract

also states that Shawmut's performance of these duties will

be "in conformity with [its] proposals therefor heretofore

submitted to and approved by the War Production Board."

But a contractual right to ensure that a producer follows

some agreed plan is hardly authority to control operations.

Cf. Hines Lumber Co., 861 F.2d at 158 (declining to infer

"control" from non-producer's right to inspect and from pro-

ducer's obligation to keep plant in compliance with environ-

mental rules).

Under either the "authority" or the conventional "actual

control" theory, one might assign CERCLA responsibility on

the basis of duress. Suppose one party, without itself exer-

cising day-to-day control, wielded such power over a hands-on

operator that the operator was merely its pawn. The Mafia,

for example, might exercise such power over a legally inde-

pendent firm, so that the Mafia might properly be held liable

for the firm's acts just as any party is held liable for the acts

of its agents. For our purposes, one might try to ground

such a duress theory in two factors--the War Production

Board's contingent power to seize the mine if it refused to

supply goods (or refused to do so at reasonable prices), or

from the government's order closing gold mines. But an

argument from duress does not work on the record here.

First, consider the gold mining restriction. If a mine could

be used for gold or zinc, and the government forbade gold

mining, there might be some situations where the ban left the

owner no choice but to produce zinc or suffer serious out-of-

pocket losses. But it appears that the Penn Mine had no

potential function as a gold mine, so that the gold-mining ban

did not put Shawmut in any such bind. In fact Shawmut

operated a gold mine elsewhere. Let us suppose, for a

moment, that the gold-mining ban had induced Shawmut to

close this mine. The availability of equipment and miners

released from the gold mine might well have made it easier to

mine zinc at Penn Mine, and conceivably evidence about

market conditions for mining equipment might prove that its

displacement from gold mining placed Shawmut in the kind of

bind we considered for the hypothetical mine that could

produce either gold or zinc. But the District offered no such

evidence. This is no surprise: in fact Shawmut continued to

produce gold at its gold mine through the war. R.S. p 71.

No duress claim can be grounded in the evidently ineffectual

gold-mining ban.

Similarly, one can imagine a party so threatened by the

War Production Board's seizure power as to have been driven

to produce against its will. But no such threat seems ever to

have loomed here. The district court summarized the record

as showing that Shawmut's production efforts were the result

of consensual agreement with the government, 948 F. Supp.

at 90, and the District does not dispute the finding. Indeed,

it appears from the record that Shawmut sought out govern-

ment financing on its own initiative in order to reopen Penn

Mine. This view of the operations as consensual is of course

further confirmed by the government's offers of increased

prices; the carrot prevailed, not the stick. The differences

between the government's actions here, and those of any

buyer who is very determined to elicit a supplier's production,

are not enough to make it an operator under CERCLA.

* * *

The judgment of the district court is

Affirmed.