Respondents Brief — Teck Metals Ltd., fka Teck Cominco Metals, Ltd., Petitioner v. The Confederated Tribes of the Colville Reservation, et al.

No. 18-1160

In the

Supreme Court of the United States

TECK METALS LTD., FKA TECK

COMINCO METALS, LTD.,

Petitioner,

v.

THE CONFEDERATED TRIBES OF THE

COLVILLE RESERVATION, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Ninth Circuit

BRIEF IN OPPOSITION OF THE

CONFEDERATED TRIBES OF THE

COLVILLE RESERVATION

Paul J. Dayton

Counsel of Record

Brian S. Epley

Ogden Murphy Wallace, P.L.L.C.

901 Fifth Avenue, Suite 3500

Seattle, WA 98164

(206) 447-7000

pdayton@omwlaw.com

Counsel for Respondent the

Confederated Tribes of the

Colville Reservation

287537

A

(800) 274-3321 • (800) 359-6859

i

QUESTIONS PRESENTED

Petitioner Teck Metals Ltd. and its predecessors (Teck)

has for more than a century operated a smelter located

on the bank of the Columbia River ten miles north of the

United States-Canada border. Teck dumped its smelting

waste (slag and liquid effluent) into the river and most of

the wastes flowed downstream into the Upper Columbia

River (UCR) in the state of Washington. Teck admits it was

using the UCR as, in its words, a “free” and “convenient

disposal facility.” After Teck refused to comply with a

United States order requiring it to investigate and study

response to its contamination of the UCR, this litigation

ensued. From the outset, Teck has denied that it was subject

to U.S. environmental law. Its arguments did not convince

the district court or the court of appeals and, in 2008, this

Court denied Teck’s Petition for Writ of Certiorari. After

the mandate returned, Respondents the Confederated

Tribes of the Colville Reservation (Colville Tribes) and the

State of Washington (State) prevailed on claims against

Teck under the Comprehensive Environmental Response,

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

seq., (CERCLA). The court of appeals affirmed. Teck now

renews its petition on questions one and three listed below

and also requests review of the court of appeals’ decision

affirming personal jurisdiction.

The questions presented are:

1.

Whether CERCLA is being applied domestically

to releases of hazardous substances from Teck’s

waste at a facility (the UCR) located wholly within

the United States.

ii

2.

Whether Teck subjected itself to personal

jurisdiction based on its practice of using the

Upper Columbia River in the state of Washington

as a “free” and “convenient disposal facility” for

its hazardous wastes.

3.

Whether CERCLA applies to persons and entities

that arrange to dispose hazardous substances at

a facility without involvement of a third party.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . v

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 1

REASONS FOR DENYING THE PETITION . . . . . . 7

I.

CERCLA IS BEING A PPLIED TO

ADDRESS DOMESTIC CONDITIONS

AND THE PRESUMPTION AGAINST

EXTRATERRITORIAL APPLICATION

OF U.S. LAW IS NOT IMPLICATED . . . . . . . 7

A. T he Cou r t of Appea ls’ Opi n ion

Correctly Applied CERCLA to Remedy

Contamination of a Domestic Site . . . . . . . . 7

B. Application of U.S. Law Has Enabled, Not

Disrupted, Resolution of Environmental

Disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

C. T he Cou r t of Appea ls’ Opi n ion

Comports with Comity Concerns and

International Law . . . . . . . . . . . . . . . . . . . . 14

1.

The Court of Appeals’ Decision

Does Not Threaten International

Comity and Foreign Relations . . . . . . 14

iv

Table of Contents

Page

2. The Charming Betsy Doctrine Does

Not Dictate a Different Result. . . . . . 16

II. PERSONA L J U RISDICTION WA S

ESTABLISHED BASED ON TECK’S

PURPOSEFUL USE OF THE UCR AS

ITS CHOSEN DISPOSAL FACILITY . . . . . . 19

III. PAKOOTAS I CORRECTLY ANALYZED

T H E S C O P E O F “A R R A N G E R ”

LIABILITY UNDER § 9607(a)(3) AND

THIS COURT ’S STA NDA RDS FOR

REVIEW ARE NOT MET . . . . . . . . . . . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

v

TABLE OF CITED AUTHORITIES

Page

CASES

Ali v. Federal Bureau of Prisons,

552 U.S. 214 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Amcast Indus. Corp., v. Detrex Corp.,

2 F.3d 746 (7th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . 28

American Cyanamid Co. v. Capuano,

381 F.3d 6 (1st Cir. 2004) . . . . . . . . . . . . . . . . . . 3, 6, 24

Arc Ecology v. U.S. Dep’t of Air Force,

411 F.3d 1092 (9th Cir. 2005) . . . . . . . . . . . . . . . . 10, 17

Ariel Investments, LLC v. Ariel Capital

Advisors, LLC,

881 F.3d 520 (7th Cir. 2018) . . . . . . . . . . . . . . . . . . . . 22

Bunting v. Mellen,

541 U.S. 1019 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Burger King Corp. v. Rudzewicz,

471 U.S. 462 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Burlington Northern & Santa Fe Railway Co. v.

United States,

556 U.S. 599 (2009) . . . . . . . . . . . . . . . . . . . . . . . passim

Calder v. Jones,

465 U.S. 783 (1984) . . . . . . . . . . . . . . . . . . . . . . . passim

vi

Cited Authorities

Page

California v. Rooney,

483 U.S. 307 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Chevron Mining Co., v. United States,

863 F.3d 1261 (10th Cir. 2017) . . . . . . . . . . . . . . . . . . 30

Concrete Sales & Servs., Inc. v.

Blue Bird Body Co.,

211 F.3d 1333 (11th Cir. 2000) . . . . . . . . . . . . . . . . . . 31

CTS Corp. v. Waldburger,

573 U.S. 1, 12 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . 29

EEOC v. Arabian Am. Oil Co.,

499 U.S. 244 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9

Exxon Corp. v. Hunt,

475 U.S. 355 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

F. Hoffmann-La Roche Ltd. v. Empagran, S.A.,

542 U.S. 155 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Fed. Trade Comm’n v. Compagnie De SaintGobain-Pont-A-Mousson,

636 F.2d 1300 (D.C. Cir. 1980) . . . . . . . . . . . . . . . . . . 17

Foley Bros. v. Filardo,

336 U.S. 281 (1949) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Government of Province of Manitoba v. Norton,

398 F. Supp. 2d 41 (D.D.C. 2005) . . . . . . . . . . . . . . . . 15

vii

Cited Authorities

Page

Hartford Fire Ins. Co. v. California,

509 U.S. 764 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Her Majesty the Queen in Right of Ontario v.

United States

EPA, 912 F.2d 1525 (D.C. Cir. 1990) . . . . . . . . . . . . . 15

Hughey v. United States,

495 U.S. 411 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

International Shoe Co. v. Washington,

326 U.S. 310 (1945) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Isaacs v. Arizona Bd. of Regents,

608 Fed. Appx. 70 (3d Cir. 2015) . . . . . . . . . . . . . . . . 23

Kaiser Aluminum & Chem. Corp. v.

Catellus Dev. Corp.,

976 F.2d 1338 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . 3

Key Tronic Corp. v. United States,

511 U.S. 809 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Louis Vuitton Malletier, S.A. v. Mosseri,

736 F.3d 1339 (11th Cir. 2013) . . . . . . . . . . . . . . . 22, 23

Marten v. Godwin,

499 F.3d 290 (3d Cir. 2007) . . . . . . . . . . . . . . . . . . . . . 23

Meghrig v. KFC Western, Inc.,

516 U.S. 479 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

viii

Cited Authorities

Page

Michie v. Great Lakes Steel Div.,

Nat’l Steel Corp.,

495 F.2d 213 (6th Cir.), cert. denied,

419 U.S. 997 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Milliken v. Meyer,

311 U.S. 457 (1940) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Morrison v. National Australia Bank Limited,

561 U.S. 247 (2010) . . . . . . . . . . . . . . . . . . . . . . . . 6, 8, 9

Morton Int’l, Inc. v. A.E. Staley Mfg. Co.,

343 F.3d 669 (3d Cir. 2003) . . . . . . . . . . . . . . . . . . . . . 30

Murray v. Schooner Charming Betsy,

6 U.S. (2 Cranch) 64 (1804) . . . . . . . . . . . . . . . 16, 17, 18

Ohio v. Wyandotte Chems. Corp.,

401 U.S. 493 (1971) . . . . . . . . . . . . . . . . . . . . . . . . 15, 18

Old Republic Insur. Co. v.

Continental Motors, Inc.,

877 F.3d 895 (10th Cir. 2017) . . . . . . . . . . . . . . . . . . . 23

Oldfield v. Pueblo De Bahia Lora, S.A.,

558 F.3d 1210 (11th Cir. 2009) . . . . . . . . . . . . . . . . . . 23

Pakootas v. Teck Cominco Metals, Ltd.,

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

ix

Cited Authorities

Page

Pakootas v. Teck Cominco Metals, Ltd.,

905 F.3d 565 (9th Cir. 2018) (Pakootas II) . . . . . . . 5-6

Pakootas v. Teck Cominco Metals, Ltd.,

No. CV- 04-256 -A A M, 2004 WL 2578982

(E.D. Wash. Nov. 8, 2004) . . . . . . . . . . . . . . . . . . . . . 3, 6

Pinal Creek Grp. v. Newmont Mining Corp.,

118 F.3d 1298 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . 11

RJR Nabisco, Inc. v. European Community,

__ U.S. __, 136 S. Ct. 2090 (2016) . . . . . . . . . . . . . . . . 9

Smith v. United States,

507 U.S. 197 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Société Nationale Industrielle Aéropastiale v.

United States Dist. Ct. for S. Dist. Of Iowa,

482 U.S. 522 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Teck Cominco Metals, Ltd. v. Pakootas,

552 U.S. 1095 (2008) . . . . . . . . . . . . . . . . . . 4, 11, 13, 24

United States v. Cello-Foil Products., Inc.,

100 F.3d 1227 (6th Cir. 1996) . . . . . . . . . . . . . . . . 27, 30

United States v. Corey,

232 F.3d 1166 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . 17

United States v. Hooker Chems. & Plastics Corp.,

749 F.2d 968 (2d Cir. 1984) . . . . . . . . . . . . . . . . . . . . . 15

x

Cited Authorities

Page

United States v. Vertac Corp.,

46 F.3d 803 (8th Cir. 1995) . . . . . . . . . . . . . . . . . . 30, 31

Walden v. Fiore,

571 U.S. 277 (2014) . . . . . . . . . . . . . . . . . . . . . . . passim

Yates v. United States,

__ U.S. __, 135 S. Ct. 1074 (2015) . . . . . . . . . . . . 27, 28

STATUTES AND OTHER AUTHORITIES

42 U.S.C. § 9605 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

42 U.S.C. § 9607(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . passim

Legality of the Threat of Use of Nuclear

Weapons in A rmed Conf licts, Advisor y

Opinion, 1996 I.C.J. 226 (July 8) . . . . . . . . . . . . . . . . 18

Restatement (Third) of Foreign Relations Law of

the United Sates (Restatement) § 402(1)(c) . . . . . . . 18

Restatement (Third) of Foreign Relations Law of

the United Sates (Restatement) § 431(1) . . . . . . . . . 18

Treaty Between the United States and Great

Br it a i n Relat i ng t o Bou nda r y Wat er s

Between the United States and Canada,

Gr. Brit.-U.S., Jan. 11, 1909, 36 Stat. 2448 . . . . . . . . 15

1

STATEMENT OF THE CASE

Teck is a large mining company with international

operations. Among these is the Trail Smelter located on

the shores of the Columbia River ten miles north of the

Canadian—U.S. border. Pet. App. 96a.

The smelter processes ore and refines it to pure

metal. The smelting process creates waste in the form

of slag and liquid effluent. Pet. App. 96a-97a. The slag

contains various metals including iron, copper, lead, zinc,

arsenic, cadmium, barium, antimony, chromium, cobalt,

manganese, nickel, selenium, and titanium. Pet. App.

96a. The liquid effluent also contains mercury, arsenic,

and cadmium among other hazardous substances. Pet.

App. 97a-98a. For decades, Teck dumped these wastes

into the Columbia River—at least 9.97 million tons of it.

Pet. App. 96a-97a. At Teck’s Trail Smelter, the river is

free-flowing, and it takes Teck’s wastes south into the

United States. Pet. App. 2a, 4a. Teck now concedes that

most of its wastes moved across the U.S border and that

some are found in Lake Roosevelt, the large lake formed

by the Grand Coulee Dam. Pet. App. 97a-98a.

Teck’s disposal of its wastes in the United States was

part of a plan to dispose of its wastes without cost. As its

Environmental Manager stated and the trial court found,

Teck used Lake Roosevelt as a “free” and “convenient

disposal facility.” Pet. App. 103a-104a. Decades ago, it

acknowledged internally that it was “in effect dumping

waste into another country—a waste they classify as

hazardous material.” Pet. App. 103a. Yet it persisted in

discharging its slag and effluent to the Columbia River.

As the trial court found, it was not only the inevitable

2

consequence but the “very purpose of Teck’s disposal

practices that the substances would come to be located”

in Lake Roosevelt and the UCR. Pet. App. 129a.

In 1992, the government of British Columbia concluded

that Teck’s slag was toxic to fish and demanded that it

cease such discharges. Pet. App. 107a-108a. In 1995, slag

discharges were nearly eliminated. Pet. App. 111a. But,

British Columbia did nothing to require Teck to address

its contamination of the Columbia River in the United

States.

Since time immemorial, the Colville Tribes have

lived on the shores of the Columbia River south of the

Canadian—U.S. border. In 1999, the Colville Tribes

petitioned the United States Environmental Protection

Agency (EPA) pursuant to CERCLA, 42 U.S.C. § 9605,

to assess hazardous substance contamination in the

Columbia River extending 150 river miles south from the

Canadian—U.S. border. Pet. App. 154a. EPA responded

and in 2003 issued a Unilateral Administrative Order

(UAO) finding that wastes from Teck’s Trail Smelter

were prevalent in the 150 mile stretch of the UCR and

had released hazardous substances to the environment.

Pet. App. 62a-64a. Consequently, Teck was identified as

a responsible party under CERCLA. Pet. App. 135a. The

order required Teck to conduct a Remedial Investigation

and Feasibility Study (RI/FS) to evaluate site conditions

and necessary cleanup activities. Id.

Teck refused. Pet. App. 135a. When EPA did not act

to enforce the UAO, the Colville Tribes funded a citizen

suit by two of its leaders, Joseph Pakootas and DR Michel,

to enforce the UAO, and the State of Washington joined

3

the case as an intervenor-plaintiff. Pet. App. 135a-136a.

Teck immediately moved to dismiss the case arguing lack

of personal jurisdiction and impermissible extraterritorial

application of U.S. law. Pet. App. 136a. The district court

denied Teck’s motion to dismiss1 and only then did Teck

negotiate an agreement with EPA to conduct a RI/FS

similar to but not governed by CERCLA. Pet. App. 136a.

It did not agree to any cleanup of the site, Pet. App. 6a, and

pursued appeal. See Pakootas v. Teck Cominco Metals,

Ltd., 452 F.3d 1066 (9th Cir. 2006) (Pakootas I). Its appeal

targeted the district court’s ruling on extraterritoriality

and did not challenge the district court’s adverse decision

on personal jurisdiction. See Appellant’s Opening Brief,

Pakootas I, 452 F.3d 1066 (No. 05-35153), 2005 WL

2106416. Its appellate brief briefly raised the “arranger”

argument presented here but cited no case law supporting

its argument. 2 Appellant’s Opening Brief at 38-39,

Pakootas I, 452 F.3d 1066 (No. 05-35153).

The court of appeals affirmed the district court,

finding that CERCLA was being applied domestically

to releases of hazardous substances in the UCR, and

rejecting Teck’s argument that arranger liability requires

a third party. See Pet. App. 60a-92a; Pakootas I, 452 F.3d

1066. Teck moved for en banc review and lost. It petitioned

for a Writ of Certiorari from this Court on both points

1. Pakootas v. Teck Cominco Metals, Ltd., No. CV-04-256AAM, 2004 WL 2578982 (E.D. Wash. Nov. 8, 2004).

2. A few weeks before oral argument, Teck’s counsel submitted

a letter identifying two cases it believed supported its argument:

American Cyanamid Co. v. Capuano, 381 F.3d 6, 23-24 (1st Cir.

2004) and Kaiser Aluminum & Chem. Corp. v. Catellus Dev. Corp.,

976 F.2d 1338, 1341 (9th Cir. 1992).

4

addressed by the court of appeals. In 2008, after receiving

an amicus brief from the United States counseling against

review, this Court denied Teck’s petition. Teck Cominco

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

After this Court denied the writ, litigation continued.

The Colville Tribes and the State pressed claims for

declaratory relief establishing Teck’s liability under

CERCLA and its responsibility to pay their response

costs. Teck denied liability and, in Phase I, the district

court addressed liability for declaratory relief. Before

trial, Teck stipulated to the elements of arranger liability,

including the fact that it had deposited 9.97 million tons

of hazardous wastes in the Columbia River, some of

which is now found in the UCR. Pet. App. 144a. Teck did

not concede personal jurisdiction and a trial was held.

After trial, the trial court entered findings of fact on

personal jurisdiction and Teck’s liability as an “arranger”

under Section 9607(a)(3). Pet. App. 93a-131a. Relevant to

jurisdiction, the trial court found that Teck knew it was “in

effect dumping waste into another country—a waste that

they classify as a hazardous material.” Pet. App. 103a. It

further found that Teck recognized that it had “been using

Lake Roosevelt as a “free’ ‘convenient disposal facility’ for

its wastes.” Pet. App. 103a-104a. Indeed, the trial court

found that the “very purpose” of Teck’s waste disposal

practices was to use the UCR Site as the place its wastes

would come to be located. Pet. App. 129a.

Based on these and other findings, the district court

applied Calder v. Jones, 465 U.S. 783 (1984), and found

that Teck intentionally disposed of its waste “intending

to take advantage of the natural transport mechanism

the river offered, with knowledge its waste would repose

5

in Washington State.” Pet. App. 116a. The trial court

concluded that Teck’s intentional actions were “expressly

aimed at” and “specifically targeted at Washington State.”

Pet. App. 116a-117a. These findings were not challenged

on appeal. The trial court found personal jurisdiction

exists and determined that Teck’s admissions proved the

elements of arranger liability. Pet. App. 121a, 126a, 129a.

It ordered that Teck was jointly and severally liable to

the Colville Tribes and State in any subsequent action

or actions to recover past or future response costs at the

UCR site. Pet. App. 129a.

In Phase II, the district court addressed Teck’s

responsibility for the State and Colville Tribes’ response

costs. The State settled its response cost claim before

trial, but trial was held on the Tribes’ claim. The district

court awarded the requested amount of $8,253,676.65,

plus interest. Pet. App. 169a.

Teck’s CERCLA-like RI/FS also went forward under

direction of EPA. Investigation of Teck’s contamination

of the UCR Site has proved complex and lengthy. Work

started in 2006 and is still not done. Teck reports

spending more than $90 million and the current estimated

completion date is several years away.

No government has invoked any treaty or related

process to address Teck’s contamination of the UCR.

Teck appealed the Phase I and Phase II district court

judgments establishing its liability and responsibility

for response costs and, in 2018, the court of appeals

unanimously affirmed the district court. Pet. App. 1a-59a;

Pakootas v. Teck Cominco Metals, Ltd., 905 F.3d 565 (9th

6

Cir. 2018) (Pakootas II). Teck requested en banc review,

received no votes for review, and the request was denied. 3

This Petition ensued.

Teck alleges three bases for issuance of the writ.

Two of them—extraterritorial application of law and

“arranger” liability—were previously rejected by this

Court in its 2008 order. The court of appeals’ 2006 decisions

on these points have held up well. No court has criticized

the opinion on either holding. On extraterritoriality, the

court of appeals anticipated the framework for analysis

stated in Morrison v. National Australia Bank Limited,

561 U.S. 247 (2010). Teck may disagree with the result,

but the standard was correctly framed. As for “arranger”

liability, Pakootas I applied “arrange” as the term was

subsequently defined in Burlington Northern & Santa Fe

Railway Co. v. United States, 556 U.S. 599, 610-11 (2009).

Teck and amici concede that there is no split in the circuits

on this issue.4 Indeed, Pakootas I is the only appellate

court to have decided the question. When Teck revisited

the issue in its 2017 appellate brief, it cited only Capuano,

the principal circuit case cited in its failed 2007 petition

for Writ of Certiorari. Its current Petition to this Court

reaches more broadly to discuss cases discussing whether

an “arranger” must also be an “owner” and dicta from this

Court’s decision in Burlington Northern, but Teck was

unable to find a single case holding contrary to Pakootas I.

3. Pakootas v. Teck Cominco Metals, Ltd., No. 16-35742, Dkt.

71 (9th Cir. Dec. 4, 2018) (order denying petition for panel rehearing

and rehearing en banc).

4. Teck and amici argue for a “tension” with decisions

addressing the different question of whether ownership of hazardous

wastes is required for “arranger” liability.

7

Finally, the court of appeals’ personal jurisdiction decision

correctly applied the well-established Calder test. Teck

makes much of this Court’s recent decision in Walden v.

Fiore, 571 U.S. 277 (2014), but the court of appeals’ opinion

fits comfortably with its focus on conduct related to the

forum state, and Teck again could not find disagreement

among the circuits regarding its application.

REASONS FOR DENYING THE PETITION

I.

CERCLA IS BEING A PPLIED TO

A DDRESS DOMESTIC CONDITIONS

A N D T H E PR E SU M P T ION AGA I N ST

EXTRATERRITORIAL APPLICATION OF U.S.

LAW IS NOT IMPLICATED.

A.

The Court of Appeals’ Opinion Correctly

Applied CERCLA to Remedy Contamination

of a Domestic Site.

This Court’s jurisprudence on the presumption

against extraterritorial application of U.S. law is well

established. Congress’ legislation “is meant to apply only

within the territorial jurisdiction of the United States.”

EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991)

(Aramco) (quoting Foley Bros. v. Filardo, 336 U.S. 281,

285 (1949)). This presumption is a canon of construction

“whereby unexpressed congressional intent may be

ascertained.” Id. (quoting Foley Bros., 336 U.S. at 285).

The presumption flows naturally from the “commonsense

notion that Congress generally legislates with domestic

concerns in mind.” Smith v. United States, 507 U.S. 197,

204 n.5 (1993).

8

Mindful of these principles, the court of appeals’

analysis of Teck’s extraterritoriality challenge began

by determining whether this case involves a domestic

or extraterritorial application of CERCLA. Pet. App.

72a. The court noted that unlike other United States

environmental laws, such as the Clean Air Act (CAA) and

the Resource Conservation and Recovery Act (RCRA),

CERCLA is not a regulatory statute. It imposes liability

based on “release or threatened release of hazardous

substances into the environment.” Pet. App. 72a. Accord

Meghrig v. KFC Western, Inc., 516 U.S. 479, 483 (1996)

(CERCLA imposes liability to remediate a site based on

such releases).

Applying the elements of Section 9607(a)(3) “arranger”

liability, the court determined that arranging for disposal

in Canada is not sufficient for liability to attach, and that

the “operative event creating a liability under CERCLA

is the release or threatened release of a hazardous

substance.” Pet. App. 81a. As the “actual or threatened

release” at issue—the leaching of hazardous substances

from slag that settled at the UCR Site—“took place in

the United States,” the court of appeals concluded that

“this case involves a domestic application of CERCLA.”

Pet. App. 82a-83a.

Almost thirteen years later, the court of appeals’

opinion has held up well. No case has criticized its

reasoning. Teck urges that this Court’s subsequent decision

in Morrison, in which it rejected an “effects” exception

to the extraterritoriality presumption in a case applying

U.S. securities laws to transactions on foreign exchanges,

altered the applicable analysis of whether a statute is

being applied domestically. There is no substance to this

9

argument. Morrison and the Court’s subsequent decision

in RJR Nabisco, Inc. v. European Community, __ U.S. __,

136 S. Ct. 2090 (2016), examined and rejected an exception

to the extraterritoriality presumption but did not address

or modify the considerations applicable to determining

when a statute is being applied domestically. Certainly,

these opinions did not criticize or even cite the court of

appeals’ analysis of this issue in Pakootas I. Rather than

criticizing the Pakootas I opinion, in directing reviewing

courts to determine whether the statute in question has a

domestic focus, the Court implicitly endorsed the approach

the court of appeals applied here.

The Pakootas I opinion on domestic application of

CERCLA anticipated the Court’s statement that in

determining whether a case involves a domestic application

of a statute, it must “look[] to the statute’s ‘focus.’” See

RJR Nabisco, 136 S. Ct. at 2101. 5 The appellate court

observed that CERCLA targets “cleanup of sites where

there is a release or threatened release of hazardous

substances into the environment.” Pet. App. 72a. It

reasoned that RCRA, not CERCLA, governs liability for

“generation and disposal of hazardous waste, whereas

CERCLA imposes liability to clean up a site where there

are actual or threatened releases of hazardous substances

into the environment.” Pet. App. 84a. This examination of

the statute’s focus is what RJR Nabisco requires.

5. That the court of appeals anticipated and adhered to

Morrison and RJR Nabisco’s concentration on a statute’s “focus”

is unsurprising given that Morrison cited the Aramco Court’s

conclusion that was predicated on the “focus” of Title VII. Morrison,

561 U.S. at 266 (citing Aramco, 499 U.S. at 255).

10

Teck claims that the court of appeals applied a

“domestic effects” exception to the presumption against

extraterritorial application of United States law, but its

citation does not support its claim. The court of appeals’

conclusion that CERCLA was being applied domestically

meant that it had no need to take up application of

extraterritoriality principles. Pet. App. 84a-85a.

Teck then argues that even if the focus of CERCLA is

on releases of hazardous substances—which indisputably

occurred in the United States—Teck’s conduct occurred

only in Canada. Teck’s attempted compartmentalization

of its conduct overlooks the trial court’s findings and

reads “conduct” too narrowly. The Colville Tribes and

State proved in the trial court that Teck had purposefully

disposed of its wastes in Lake Roosevelt, using it as a “free”

“convenient disposal facility.” The conduct of arranging to

use the Columbia River to transport wastes to the disposal

site did not stop at the end of the chute at the Trail Smelter.

The conduct is the disposal of hazardous substances, and

the disposal was complete when wastes came to repose

in Lake Roosevelt in the United States, exactly as Teck

intended. See, e.g., Pet. App. 129a (district court found that

it was “not only the inevitable consequence, but the very

purpose of Teck’s disposal practices that the substances

would come to be located at the UCR Site”). Teck’s cabined

account of its disposal practices clashes with CERCLA’s

focus on cleanup of domestic sites. Key Tronic Corp. v.

United States, 511 U.S. 809, 814 (1994) (“CERCLA is a

comprehensive statute that grants the President broad

power to command government agencies and private

parties to clean up hazardous waste sites”); Arc Ecology

v. U.S. Dep’t of Air Force, 411 F.3d 1092, 1094 (9th Cir.

2005) (CERCLA’s primary objectives are “to ensure the

11

prompt and effective cleanup of waste disposal sites, and to

assure that parties responsible for hazardous substances

[bear] the cost of remedying the conditions they created”)

(quoting Pinal Creek Grp. v. Newmont Mining Corp., 118

F.3d 1298, 1300 (9th Cir. 1997)) (alteration in original).

That is precisely how it is being applied here. If CERCLA

cannot reach the hazardous substances found in this

Site, Congress’ objectives in passing CERCLA cannot

be accomplished.

B. Application of U.S. Law Has Enabled, Not

Disrupted, Resolution of Environmental

Disputes.

Teck’s warnings that applying CERCLA to its

disposal of hazardous substances in the UCR Site

will harm the United States’ foreign relations have no

grounding in evidence and certainly not the trial court

findings. Teck made similar arguments in its 2007

Petition for Writ of Certiorari and drew this rebuke from

the Government of Canada: “[T]he Government of Canada

does not condone—indeed it disagrees with—Petitioner’s

assertions that the Ninth Circuit’s decision ‘could provoke

retaliatory actions against American interests by Canada

or her courts,’…and reflect a complete misunderstanding

of Canadian governmental policy and process.” Brief of

the Government of Canada as Amicus Curiae 3-4, n.4,

Teck Cominco Metals, Ltd. v. Pakootas, 552 U.S. 1095

(2008) (No. 06-1188) (May 2, 2007) (2007 Br. of Canada).

Teck argues that applying CERCLA will increase

cross-border fr iction by infr ing ing on Canadian

sovereignty. This has no force because Teck cites no

conflicting Canadian law nor any Canadian law applicable

12

to cleanup of the wastes transported to the United

States. To the contrary, the record shows that there is no

clash between United States and Canadian law and that

Canadian law does not provide for remediation of any site

located in the United States.6

Teck’s claim of inconsistency with the laws of Canada

may be based on the Province of British Columbia’s

statement that its laws do not provide for private

enforcement of cleanup responsibilities. Pet. 17. This is off

point because the plaintiffs in the current claims are both

government entities—not private parties. Moreover, the

previous citizen suit that originated this action enforced

an UAO issued by the United States EPA pursuant to

CERCLA and was not a private action.

Teck argues that application of U.S. law will deter

negotiated settlements, but it fails to acknowledge that

it has never agreed to clean up its contamination of the

UCR Site. Contrary to Teck’s argument, it appears this

litigation encouraged Teck’s settlement with EPA as it

did not agree to perform a CERCLA-like RI/FS until

after it lost its motion to dismiss in the district court.

The United States disagrees with Teck’s assessment of

the value of this litigation, and in 2008 told the district

court that it welcomed early resolution of the liability

6. See Declaration of Professor Richard Kyle Paisley, Pakootas

I, 452 F.3d 1066 (No. 05-35153), Dkt. Nos. 25 (Paisley declaration)

& 49 (court of appeals’ Order granting State’s motion for leave to

file expert declaration as addendum) (describing Canadian and

British Columbia law, explaining absence of conflict with CERCLA,

and explaining that neither Canadian nor British Columbia law

empowers a Canadian agency to order remediation of a site located

in the United States).

13

issue, which would be beneficial to cleanup at the Site.

SER 206-07.7

As in its 2007 Petition, 8 Teck has made the parade

of horribles argument suggesting that its liability in this

case will lead to reciprocal enforcement action by other

nations. Leaving aside whether such events are just, in

the subsequent twelve years that has not happened. Teck

cites a single case from 2008. Based on Teck’s account,

it appears that litigation was productive as it led to

government implementation of stricter environmental

standards. Pet. 19. The United States previously

explained that this concern of unbridled transboundary

litigation was unfounded. Brief of the United States

as Amicus Curiae at 18, Teck Cominco Metals, Ltd. v.

Pakootas, 552 U.S. 1095 (2008) (No. 06-1188) (Nov. 20,

2007) (Br. of United States). And in this it seems to agree

with the Government of Canada. 2007 Br. of Canada 3-4,

n.4.

7. There is no basis for amicus Canada’s claim that this lawsuit

has “repeatedly undermined” the “cooperative solution” brokered

by the United States and Canada. Brief for Amicus Curiae the

Government of Canada in Support of Petitioner (2019 Br. of Canada),

17. As the United States’ letter explains, expeditious resolution

of the lawsuit will hasten cleanup at the Site once the RI/FS is

complete. SER 207. And Canada’s suggestion it “brokered” the 2006

Settlement Agreement, id., has no basis in the record. In fact, the

only signatories to the RI/FS agreement are Teck and the United

States, and it does not allude to involvement by the Government of

Canada. ER 1361-1440.

8. Petition for Writ of Certiorari at 22-24, Teck Cominco

Metals, Ltd., v. Pakootas, 552 U.S. 1095 (2008) (No. 06-1188), 2007

WL 621960.

14

C.

The Court of Appeals’ Opinion Comports with

Comity Concerns and International Law.

1.

The Court of Appeals’ Decision Does

Not Threaten International Comity and

Foreign Relations.

The principle of international comity is not violated

unless application of CERCLA to Teck makes it impossible

for Teck to comply with United States and Canadian law.

See Hartford Fire Ins. Co. v. California, 509 U.S. 764,

799 (1993) (no conflict exists where a person subject to

regulation by two states can comply with laws of both);

Société Nationale Industrielle Aéropastiale v. United

States Dist. Ct. for S. Dist. Of Iowa, 482 U.S. 522, 555

(1987) (“[T]he threshold question in a comity analysis is

whether there is a true conflict between domestic and

foreign law”). Application of U.S. law to foreign conduct

causing domestic injury does not violate comity principles.

F. Hoffmann-La Roche Ltd. v. Empagran, S.A., 542 U.S.

155, 165 (2004). Having failed to explain how remediating

its hazardous substances in the United States will make it

impossible to comply with Canadian law, Teck and amici

have not established any comity concern.

Teck raised the same comity concerns it does here in

its 2007 petition. The United States government previously

explained these concerns are greatly overstated and do

not warrant granting Supreme Court review. See Br. of

United States 15-18.

Contrary to Teck’s insinuation, the United States and

Canada have dealt with international pollution issues in

various ways, including litigation in federal courts. See

15

Br. of United States 15. First, the United States often

attempts to achieve diplomatic solutions to transnational

pollution issues. Id. Second, as Teck notes, the United

States has discretion under the Boundary Waters Treaty

(BWT) 9 to seek advice or dispute resolution, and has

previously sought such advice jointly with Canada, though

the treaty does not require the United States to do so. Id.

Finally, there has been litigation of transborder pollution

disputes in the United States courts. Id. 15-16 (citing Her

Majesty the Queen in Right of Ontario v. United States

EPA, 912 F.2d 1525 (D.C. Cir. 1990); Michie v. Great Lakes

Steel Div., Nat’l Steel Corp., 495 F.2d 213 (6th Cir.), cert.

denied, 419 U.S. 997 (1974)).10 Thus, in practice, the United

States and Canada have resolved transnational pollution

issues satisfactorily in various ways, including litigation,

without adverse implications for international comity. See

Br. of United States 16.11

9. Treaty Between the United States and Great Britain

Relating to Boundary Waters Between the United States and

Canada, Gr. Brit.-U.S., Jan. 11, 1909, 36 Stat. 2448.

10. See also Ohio v. Wyandotte Chems. Corp., 401 U.S. 493,

506-08 (1971) (litigation over pollution by Dow Canada that eventually

harmed Lake Erie); United States v. Hooker Chems. & Plastics

Corp., 749 F.2d 968, 975 (2d Cir. 1984) (Province of Ontario suing

to protect Canadian citizens harmed by U.S. company’s pollution

of Lake Ontario and the Niagara River); Government of Province

of Manitoba v. Norton, 398 F. Supp. 2d 41 (D.D.C. 2005) (suit by

Province of Manitoba against U.S. Secretary of Interior over water

diversion project that could pollute Canadian waters).

11. In fact, the Government of Canada previously conceded that

“some cases involving transboundary pollution may appropriately

be resolved in the domestic courts of Canada or the United States.”

2007 Br. of Canada 6.

16

Furthermore, the United States has explained that

the unique and compelling nature of this case mitigates

any comity concerns. Notably, the UAO issued to Teck

represents the first time in 39 years since CERCLA’s

enactment that EPA has sought to compel a foreign party

to take a response action with respect to domestic pollution

resulting from actions in a foreign country. Br. of United

States 16. These unique circumstances are unlikely to

recur in a substantial way that would heighten the issue

of comity. Moreover, the court of appeals’ opinion does not

threaten to disrupt the country’s ties with Canada. Id. The

United States explained that the assertion of jurisdiction

is consistent with considerations of international comity

given the “direct and compelling United States interest”

involved. Id.

Finally, notwithstanding Teck and amici’s references

here, neither Canada nor the United States have invoked

the BWT or any other treaty in the 15 years this case has

been pending. To claim now that courts should defer to

these institutions when no nation has even attempted to

invoke them does not persuade.

2.

The Charming Betsy Doctrine Does Not

Dictate a Different Result.

The Charming Betsy12 doctrine does not support

reversal.13 First, no conflict with international law or

12. See Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch)

64 (1804).

13. Also, Teck waived this argument by not raising it in the

trial court or court of appeals (both in this appeal and the 2006

interlocutory appeal).

17

comity exists. The concerns underlying the canon are

“much less serious” where the Executive Branch urges

the interpretation that allegedly violates international law.

ARC Ecology, 411 F.3d at 1102. In such circumstances,

courts presume the President has “evaluated the foreign

policy consequences of such an exercise of U.S. law and

determined that it serves the interests of the United

States.” Id. Here, the United States has concluded that,

because of the “direct and compelling United States

interest” involved, the court of appeals’ decision does not

violate treaties with Canada or threaten to disrupt ties

with Canada. Br. of United States, 15-16. And it was the

United States EPA that first asserted CERCLA against

Teck by issuing the UAO.

Second, the Charming Betsy doctrine is inapplicable

because there is “no conflict with international law to

avoid.” United States v. Corey, 232 F.3d 1166, 1179 (9th

Cir. 2000). Amicus Canada cites three international

treaties that it contends conflict with the court of appeals’

opinion: the BWT, the International Joint Commission,

and the Ottawa Convention. 2019 Br. of Canada 13-14.

But these international agreements merely create an

optional means for governments to resolve transboundary

disputes—they do not implicitly or explicitly require all

qualifying disputes to be resolved thereunder. Thus,

pursuing litigation does not directly conflict with any the

aforementioned treaties.

Moreover, nothing in international law or comity

requires a court to defer to an optional diplomatic process.

See Fed. Trade Comm’n v. Compagnie De Saint-GobainPont-A-Mousson, 636 F.2d 1300 (D.C. Cir. 1980) (refusing

to defer to optional processes in Hauge Convention);

18

Wyandotte, 401 U.S. at 507 (Douglas, J., dissenting on

other grounds) (BWT “does not evince a purpose on the

part of the national governments of the United States and

Canada to exclude…other remedies for water pollution”).

Finally, even applying the Charming Betsy doctrine

does not support Teck. This canon of construction

presumes that Congress intended to comply with

international law absent its express indication to the

contrary. Amicus Canada’s argument assumes that

international law prohibits CERCLA from applying in this

case. 2019 Br. of Canada 11-12. This assumption is wrong.

International law recognizes the “general obligation of

States to ensure that activities within their jurisdiction

and control respect the environment of other States or

of areas beyond national control…”14 International law

permits nations to prescribe and enforce laws to protect

their territorial interests from transboundary harm.

Restatement (Third) of Foreign Relations Law of the

United Sates (Restatement) §402(1)(c). When a nation

has jurisdiction to prescribe, it “may employ judicial or

nonjudicial measures to induce or compel compliance

with its laws or regulations.” Restatement §431(1). The

court of appeals’ decision is consistent with international

law and the Charming Betsy doctrine therefore has no

application here.15

14. Legality of the Threat of Use of Nuclear Weapons in Armed

Conflicts, Advisory Opinion, 1996 I.C.J. 226, ¶ 29 (July 8).

15. See also Br. of United States 17-18.

19

II. PERSONAL JURISDICTION WAS ESTABLISHED

BASED ON TECK’S PURPOSEFUL USE OF THE

UCR AS ITS CHOSEN DISPOSAL FACILITY.

Teck argues that the court of appeals’ application

of the well-established “effects” test from Calder to its

“intentional” and “purposeful” disposal of its wastes in

the UCR did not take account of this Court’s decision in

Walden and conflicts with decisions from other circuits.

This argument misreads Calder and Walden and is

foreclosed by the trial court’s findings of fact. Teck’s

intentional, extensive, and purposeful use the UCR as a

free waste disposal facility makes personal jurisdiction

plain.

Applied here, Calder requires proof that Teck (1)

committed an intentional act, (2) expressly aimed at the

forum state, (3) causing harm that the defendant knows is

likely to be suffered in the forum state. The court of appeals’

application of this test was compelling and dispositive. The

trial court found that Teck’s leadership knew Trail smelter

wastes travelled downstream to Washington, where

its slag was found on Washington beaches. Teck knew

its wastes were harming the Washington environment

and that it was, in effect, “dumping waste into another

country” and “using the Columbia River as a ‘free’ and

‘convenient disposal facility.” The trial court determined

that “the very purpose of Teck’s disposal practices [was]

that the substances would come to be located at the UCR

Site.” Pet. App. 129a. Based on this and other evidence,

the court was satisfied Teck had “expressly aimed” its

waste at the State of Washington, supporting jurisdiction

in the district court.

20

Moreover, exercising jurisdiction here cannot be said

to “offend ‘traditional notions of fair play and substantial

justice.’” International Shoe Co. v. Washington, 326 U.S.

310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457

(1940)). As the court of appeals observed, “there would

be no fair play and no substantial justice if Teck could

avoid suit in the place where it deliberately sent its toxic

waste.” Pet. App. 17a.

The court of appeals’ opinion fits well with this

Court’s subsequent opinion in Walden. In addressing

a claim of jurisdiction in Nevada based on a wrongful

seizure of money in Georgia, the Court counseled that the

constitutionally required “‘minimum contacts’ analysis

looks to the defendant’s contacts with the forum State

itself, not the defendant’s contacts with persons who reside

there.” Walden, 571 U.S. at 285. That is exactly what the

trial court and the court of appeals did here by focusing

on Teck’s purposeful use of the land and waters of the

State of Washington as a “free” disposal facility. That the

State of Washington is one of the plaintiffs only affirms

that the injury at issue was suffered by the forum state.

Teck ignores this guidance in Walden and argues

instead that the jurisdictional focus must be on its

compartmentalized understanding of its conduct, claiming

that its conduct occurred exclusively in Canada and not in

Washington. This misreads Walden because the question

is whether the conduct has sufficient relation to the forum

state, not strictly where the conduct occurred. Walden

explains that defendant’s suit-related conduct must

“create a substantial connection with the forum state”

and that “the relationship must arise out of contacts that

the ‘defendant himself ’ creates with the forum State.”

21

Walden, 571 U.S. at 284 (citing Burger King Corp. v.

Rudzewicz, 471 U.S. 462 (1985)) (emphasis in original).

This standard is easily met here based on the trial court’s

findings that Teck purposefully availed itself of Lake

Roosevelt as a free disposal facility for its smelter wastes.

Walden rejected jurisdiction grounded merely in

contact with the plaintiffs and not the forum state. Walden,

571 U.S. at 284-85. This guidance has no application here

because the case is not grounded in a transaction or event

divorced from the forum state. Teck chose to use the

UCR as a “convenient disposal facility,” fully aware that

hazardous substances would be released into Washington’s

environment. Teck could have—as it does now—hauled its

waste away for terrestrial disposal. Its unilateral decision

to dispose of millions of tons of hazardous substances in

the UCR for decades unquestionably “connects [Teck] to

the forum in a meaningful way.” Walden, 571 U.S. at 290.

Teck employs a selected, partial reading of the court

of appeals’ opinion to conjure a circuit conflict regarding

application of Walden. Teck begins by suggesting that the

court of appeals found jurisdiction solely because Teck

“knew the Columbia River carried waste…downstream,”

Pet. 23 (quoting Pet. App. 16a), and suggesting that

jurisdiction was grounded solely in knowledge of a

foreseeable impact in the forum state. In making this

argument, Teck ignores the much stronger findings of

fact cited by the court of appeals demonstrating that Teck

purposely availed itself of Lake Roosevelt in the forum

state as a free disposal site for almost ten million tons of

waste. Like the Florida-based libelous article in Calder,

this remote action had intended consequences in the forum

state sufficient for jurisdiction. Teck argues that Walden

22

“cabined” the Calder effects test in footnote seven. Pet.

25. Rather than limiting Calder, the footnote endorsed its

reach to authorize jurisdiction for remote conduct with

knowledge of substantial impact in the forum state. Teck’s

conduct easily meets that test.

Teck’s citation of Ariel Investments, LLC v. Ariel

Capital Advisors, LLC, 881 F.3d 520 (7th Cir. 2018) is no

help because there the defendant had no connection with

the forum state and was located thousands of miles away—

not unlike the facts in Walden. Id. at 521-22. In Ariel,

the plaintiff, located in Illinois (the forum state), had the

same name as a firm located in Florida, creating potential

Lanham Act liability based on customer confusion. Id.

The defendant had no contact with Illinois, so jurisdiction

could not be found. These facts have no resemblance to

Teck’s conduct here.

Teck urges that the Second and Fifth circuits differ

from the Ninth Circuit by rejecting arguments that

defendant’s knowledge is sufficient. Pet. 27-28. This does

not persuade because the Ninth Circuit did not anchor its

analysis in mere “knowledge,” and applied the trial court’s

findings showing that Teck intentionally availed itself of

the forum state with the “very purpose” of using it as a

free and convenient waste disposal site. Pet. App. 129a.

Finally, Teck argues that Calder applies only to

intentional torts. The cases it cites principally refuse

to apply Calder to mere negligence. E.g. Louis Vuitton

Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1357, n.11

(11th Cir. 2013).16 In this, they are in agreement with

16. Nor is there a circuit conflict because the Louis Vuitton

court merely commented as dicta in a footnote that it did not disagree

23

the Ninth Circuit. Pet. App. 15a (Calder does not

apply to claims of undifferentiated negligence). This

is mandated by the “intentional act” requirement for

Calder “effects” jurisdiction. Id. Nothing in either Calder

or Walden indicates that “effects” jurisdiction turns on

the classification of the form of action. The circuit cases

Teck cites also fall short because, while they distinguish

between negligence and intentional torts for jurisdictional

purposes, they do not reject application of Calder to strict

liability statues involving intentional conduct, such as this

case. See, e.g., Marten v. Godwin, 499 F.3d 290, 296-97

(3d Cir. 2007).

III. PAKOOTAS I CORRECTLY ANALYZED THE

SCOPE OF “ARRANGER” LIABILITY UNDER

§ 9607(a)(3) AND THIS COURT’S STANDARDS

FOR REVIEW ARE NOT MET.

Since 2008, when this Court denied Teck’s Petition

for Writ of Certiorari on this issue, the legal landscape

regarding this issue has not changed. The Pakootas I

with “dicta in a footnote” from another case. Louis Vuitton, 736 F.3d

1357 n.11 (citing Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d

1210, 1220 n.28 (11th Cir. 2009)). Teck cites several Third Circuit

cases applying the effects test to intentional tort claims, but none of

the cases holds the test applies exclusively to intentional torts. See

Pet. 29 (citing Isaacs v. Arizona Bd. of Regents, 608 Fed. Appx. 70,

74-75 (3d Cir. 2015); Marten v. Godwin, 499 F.3d 290, 297-99 (3d Cir.

2007)). Finally, Teck’s citation to a Tenth Circuit decision applying

the effects test in a strict liability products liability claim certainly

does not conflict with the court of appeals’ opinion. See Old Republic

Insur. Co. v. Continental Motors, Inc., 877 F.3d 895, 907-08, 916.

n.34 (10th Cir. 2017) (merely “question[ing]” in dicta whether the

test applies beyond the defamation context).

24

opinion on this point has not been criticized by any court.

In fact, other than Pakootas I, no court of appeals has

decided the question of whether liability under Section

9607(a)(3) requires involvement of a third party. Thus,

there is no reason for this Court to review this decision.

In its 2007 petition to this Court, Teck claimed a

“direct conflict” regarding the requirements of Section

9607(a)(3) based on the First Circuit decision in Capuano,

381 F.3d 6.17 Teck now labels this a tension, Pet. 30,

implicitly recognizing that Capuano did not decide

the question at issue here. In Capuano, the owner of

hazardous substances arranged with a broker to dispose

of them. Capuano, 381 F.3d at 25. As the United States

observed in its 2007 amicus brief, Capuano “did not

present the question whether a person who disposes of

hazardous substances without the involvement of a third

party can be liable as an arranger.” Br. of United States

19 (emphasis in original). It instead answered the different

question of whether arranger liability may only be imposed

on the owner or possessor of hazardous wastes, and not

on a party brokering disposal. Capuano, 381 F.3d at 23.

The court’s passing comment that “disposal or treatment

must be performed by another party or entity” was dictum

as a third party was involved in that case.18 The United

States’ amicus brief rightly concluded that Teck had cited

17. Petition for Writ of Certiorari at 25-28, Teck Cominco

Metals, Ltd., v. Pakootas, 552 U.S. 1095 (2008) (No. 06-1188), 2007

WL 621960.

18. Moreover, the defendant broker was also found liable as an

“operator,” so the appellate court’s comments regarding arranger

liability were unnecessary to affirm liability. Capuano, 381 F.3d at

22-23.

25

no case in which the arranger-liability question at issue

here was outcome-determinative. Br. of United States 20.

In short, there was no direct conflict between the circuits

warranting this Court’s review.19 That remains the case.

Any tension in the cases has not been noted in

subsequent decisions. Neither Teck nor amici identifies

any case decided since Pakootas I in which any court has

even taken up the question of whether arranger liability

requires the involvement of a third party. In fact, it

appears that Pakootas I is the only case deciding this

question. As the United States observed, this may be

because the circumstances of the case are uncommon, 20

but it surely indicates that it does not warrant review by

this Court.

Teck argues that Pakootas I was undermined by

this Court’s analysis of arranger liability in Burlington

Northern. In Teck’s view, Burlington Northern “assumed”

that arranger liability requires a third party. What Teck

labels an assumption was merely the Court’s framing of

the question of whether the arranger—who in that case

contracted to transport hazardous substances—could

be held liable for accidental spills at issue in that case.

Burlington Northern, 556 U.S. at 603-04, 612-13. Far

from a holding or even a discussion of the need for a third

19. Any disagreement in dicta is not a basis for review. See

Bunting v. Mellen, 541 U.S. 1019, 1023 (2004) (Scalia, J., dissenting

from denial of certiorari) (“We sit, after all, not to correct errors in

dicta; ‘[t]his Court reviews judgments, not statements in opinions”)

(quoting California v. Rooney, 483 U.S. 307, 311 (1987)) (alteration

in original).

20. See Br. of United States 20.

26

party for arranger liability, the Court’s comments were

offered in context of analyzing the shipper’s necessary

level of intent to be liable for releases occurring in

performance its agreement to ship hazardous material.

Id. at 610-13.

Teck invokes the Burlington Northern Court’s

discussion of the meaning of “arrange” but close

examination shows that it actually rebuts Teck’s argument.

The Court looked to the dictionary definitions of “arrange”

to ascertain its meaning, which include “action directed

to a specific purpose” and “to make preparations for;

plan.” Id. at 610-11. These definitions describe actions

that do not require third party involvement. 21 Employing

these definitions, the Court concluded that to satisfy the

plain language of the statute, “an entity may qualify

as an arranger under Section 9607(a)(3) when it takes

intentional steps to dispose of a hazardous substance.”

Id. at 611. That application of the statute easily fits Teck’s

conduct at issue here.

Ignoring the Court’s commonsense understanding

of the meaning of “arrange,” Teck resists liability by

digging deep into the clauses of the section searching for

a loophole to avoid responsibility for its disposal practices.

The opening words of Section 9607(a)(3) suggest otherwise

as it begins with broad reach: “Any person who by

contract, agreement, or otherwise arranged for disposal

or treatment….” “Contract” or “agreement” could be

21. A person may take “action directed to a specific purpose”—

like disposing of hazardous substances—individually without

involving a third party. Likewise, a party may “make preparations

for” and “plan” for the disposal of its hazardous substances without

involving a third party.

27

read to require a third party, but “or otherwise” brings

in other forms of arrangement. Amici invoke the ejusdem

generis canon of construction to argue that “otherwise

arranged” must be limited by the preceding specific

listing of “contract” or “agreement,” citing United States

v. Cello-Foil Products., Inc., 100 F.3d 1227, 1231 (6th Cir.

1996). This case is off point as it is concerned with requisite

intent, as later addressed by Burlington Northern.

Cello-Foil Products, 100 F.3d at 1231. The canon is not

rigidly applied to require that multiple statutory terms

be mere synonyms. See Ali v. Federal Bureau of Prisons,

552 U.S. 214, 227 (2008) (“[W]e do not woodenly apply

limiting principles every time Congress includes a specific

example along with a general phrase”). It is applied to

prevent use of “catch all” provisions to expand the reach

of a statute to conduct beyond the target of Congress’

regulatory intent. See, e.g., Yates v. United States, __ U.S.

__, 135 S. Ct. 1074, 1086-87 (2015) (rejecting argument

that fish are “tangible objects” within the meaning of

Sarbanes-Oxley Act’s provision prohibiting destruction

or falsification of records). Section 9607(a)(3) targets

arrangements for disposal of waste, so the canon must

be applied in the context of specifying how arrangement

may occur. Hughey v. United States, 495 U.S. 411, 419

(1990) (examining context and intent of restitution statute

to elucidate scope of catchall provision). Thus, “contract”

and “agreement” are examples of forms of prohibited

arrangement, but necessarily are not the exclusive forms.

Had Congress intended such a restricted understanding,

it did not need the language at issue here. These terms

manifest Congress’ intent to reach all the ways in which a

polluter can accomplish disposal of its wastes. Employing

the canon, amici purport to apply this Court’s guidance on

28

forms of arrangement in Burlington Northern22 but omit

the Court’s direction that “[i]n common parlance, the word

‘arrange’ implies action directed to a specific purpose.” 23

Here, Teck’s intentional steps to use the Columbia River

to transport its wastes to its selected disposal facility—the

Upper Columbia River and Lake Roosevelt—come within

the meaning of “otherwise arrange.” 24

Rather than apply the broad introductory language

prescribing liability for polluters who arrange for disposal

of their wastes, Teck focused on a subsequent clause

not obviously intended to limit arranger liability to

bilateral agreements. The language in question follows

the quotation above and states: “of hazardous substances

owned or possessed by such person, by any other party or

entity, at any facility….” 42 U.S.C. § 9607(a)(3). The court of

appeals explained that there are two different conceivable

interpretations of the meaning of this clause. Neither is

grammatically correct as drafted, but this should not deter

interpretation as the court of appeals and other courts

have recognized that “neither a logician or a grammarian

22. Brief for the Chamber of Commerce of the United States

and the National Mining Association (Br. of COC/NMA) 8.

23. Burlington Northern, 556 U.S. at 611. The Court also noted

the dictionary definition of “arrange” as “to make preparations for,”

id., and circuit authority stating that “words ‘arranged for’…imply

intentional action.” Id. (quoting Amcast Indus. Corp., v. Detrex Corp.,

2 F.3d 746, 751 (7th Cir. 1993)).

24. Teck arranged to dispose of its wastes in the UCR by

purposefully designing its waste disposal operations to accomplish

that result. Applying CERCLA to Teck is vastly different from

applying a record destruction statute to fish. See Yates, __ U.S. __,

135 S. Ct. at 1086-87.

29

will find comfort in the world of CERCLA.” Pet. App.

86a. If Teck is right that the clause requires involvement

of another party or entity, the commas surrounding “by

any other party” must go, but if the court of appeals and

Respondents are right that arranger liability extends to

disposal of hazardous substances owned by another, an

“or” should be inferred.

Faced with an ambiguity that required textual

mod i f icat ion either way, the cou r t adopt ed the

interpretation that squared with the intent of CERCLA. 25

Pet. App. 86a-89a; Exxon Corp. v. Hunt, 475 U.S. 355,

371 (1986) (“[The overall purpose of a statute is a useful

referent when trying to decipher ambiguous statutory

language”). Recognizing CERCLA’s “overwhelmingly

remedial statutory scheme,” the court reasoned that

Teck’s argument would “create a gap in the CERCLA

liability regime” by allowing a polluter to avoid liability

by disposing of wastes without involving a transporter as

an intermediary, so it must be rejected. Pet. App. 88a-89a.

Amici urge that the remedial purpose of CERCLA is no

guide here, Br. of COC/NMA at 11, citing cases in which

the meaning of the clause was clear and well-grounded

in the statute’s text and structure. E.g. CTS Corp. v.

Waldburger, 573 U.S. 1, 12 (2014) (CERCLA did not

preempt state law statute of repose). That is not the case

here as Respondents’ interpretation squares with this

Court’s understanding of the meaning of “arrange” and is

25. Teck’s convoluted attempt to “clarify” the statutory

provision—separating out the who, what, when, and how—masks

its own textual alteration. See Pet. 32. Breaking apart the provision

into four sentences conceals Teck’s deletion of two commas in the

statutory text—precisely what the court of appeals grappled with

and rejected. The statute is ambiguous because there are two

differing, reasonable interpretations.

30

consistent with comprehensive liability for polluters who

“arrange” to dispose of their wastes.

Teck disagrees with this conclusion, but no court has

sided with it and disagreed with the court of appeals’

holding. In search of a circuit split, Teck invokes cases

discussing whether an arranger must own the wastes

in question. E.g. Chevron Mining Co., v. United States,

863 F.3d 1261, 1281 (10th Cir. 2017) (“Arranger liability

under CERCLA applies only to a person who arranges for

disposal ‘of hazardous substances owned or possessed by

such person.’”) (quoting 42 U.S.C. 9607(a)(3)) (emphasis in

original). These cases do not decide the question presented

here (whether a third party must be involved) and do not

mention the decision in Pakootas I. 26 Given their focus on

necessary ownership of waste, the cases Teck cites do

not address the relationship of the ownership clause to

26. None of the cases cited by Teck have exculpated a defendant

that generated and directly disposed of its waste. See Pet. 3536; Cello-Foil Prods., 100 F.3d at 1230-31 (analyzing liability of

companies that entered into arrangement whereby they shipped used

drums to a facility where they were emptied and reconditioned, and

such activities resulted in releases of hazardous substances); Morton

Int’l, Inc. v. A.E. Staley Mfg. Co., 343 F.3d 669, 678 (3d Cir. 2003)

(analyzing liability of company that shipped material to a separate

company for processing into usable form for releases from second

company’s processing); United States v. Vertac Corp., 46 F.3d 803,

810 (8th Cir. 1995) (analyzing liability of United States for waste

released by a company with which it contracted); Chevron Mining,

863 F.3d 1261 (holding United States liable as owner of property

where it permitted company to dispose mining tailings, but refusing

to also find United States liable as arranger where, aside from selling

property to the mining company for use as a tailings disposal site

and issuing permits for pipelines to carry tailings over government

property, government had no role in tailings disposal).

31

the earlier framing of arranger liability, or the intention

of the statute as applied to an arranger that did not

involve others in its disposal practices. Thus, there is

no conflicting analysis to address and no basis for this

Court’s review.

Finally, amici the United States Chamber of

Commerce and the National Mining Association are

concerned that Pakootas I undermines decisions rejecting

liability for parties who lack control over the wastes at

issue. E.g. Concrete Sales & Servs., Inc. v. Blue Bird Body

Co., 211 F.3d 1333 (11th Cir. 2000); Vertac Chem. Corp.,

46 F.3d 803. This concern is misplaced because these

cases address the requisite intent for arranger liability

and do not discuss the interpretation of the language at

issue here. Concrete Sales & Servs., 211 F.3d at 1337;

Vertac Chem. Corp., 46 F.3d at 810-11. It is noteworthy

that the intent requirement imposed in these cases and

by Burlington Northern protects against amici’s fear of

liability based on “tangential involve[ment]” in disposal

of wastes. Br. of COC/NMA, 13.

32

CONCLUSION

For the reasons stated above, the Court should deny

the Petition for Writ of Certiorari.

Respectfully submitted,

Paul J. Dayton

Counsel of Record

Brian S. Epley

Ogden Murphy Wallace, P.L.L.C.

901 Fifth Avenue, Suite 3500

Seattle, WA 98164

(206) 447-7000

pdayton@omwlaw.com

Counsel for Respondent the

Confederated Tribes of the

Colville Reservation