Amicus Curiae Brief — Territory of Guam, Petitioner v. United States

No. 20-382

In The

Supreme Court of the United States

GOVERNMENT OF GUAM,

v.

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF AMICUS CURIAE

CONSERVAMERICA INC.

IN SUPPORT OF PETITIONER

JEFFREY KUPFER

BRENT FEWELL

CONSERVAMERICA

1455 Pennsylvania Ave., N.W.

Suite 400

Washington, D.C. 20001

(202) 664-9297

JOHN A. SHEEHAN*

LINDENE PATTON

EARTH & WATER LAW LLC

1455 Pennsylvania Ave, N.W

Suite 400

Washington, D.C. 20001

(301) 980-5032

*Counsel of Record

Counsel for Amicus Curiae

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF ARGUMENT..................................... 2

ARGUMENT ............................................................... 4

I.

THE D.C. CIRCUIT COURT

CORRECTLY FOLLOWED THE

MAJORITY VIEW THAT CERCLA

SECTION 113(F)(3)(B) DOES NOT

REQUIRE A SETTLEMENT TO

RESOLVE CERCLA SPECIFIC

LIABILITY IN ORDER FOR THE

SETTLEMENT TO TRIGGER A

CONTRIBUTION ACTION. ........................ 4

A.

II.

A Strict Requirement for

CERCLA Specific Language

Would Undermine Site-Specific

Negotiations and Undo Existing

Agreements. ......................................... 6

THE DC CIRCUIT ERRED BY

FAILING TO APPLY

TRADITIONAL PRINCIPLES OF

CONTRACT LAW IN

INTERPRETING THE 2004

CONSENT DECREE. .................................. 8

ii

A.

After Articulating the Correct

Standard, the D.C. Circuit

Failed to Properly Apply

Traditional Principles of

Contract Law When

Interpreting the 2004 Consent

Decree. ................................................. 9

B.

The Court’s Ruling Is Counter

to the Goals of CERCLA and

Will Allow Parties Responsible

for Pollution to Escape Liability

for the Pollution They Caused. ......... 15

CONCLUSION .......................................................... 16

iii

TABLE OF AUTHORITIES

CASES

Asarco LLC v. Atl. Richfield Co., 866 F.3d

1108 (9th Cir. 2017) .......................... 5, 11, 12, 14

Bernstein v. Bankert, 733 F.3d 190 (7th Cir.

2013) .................................................. 9, 10, 12, 13

Boyle v. United Technologies Corp., 487 U.S.

500 (1988)............................................................ 9

Burlington N. & Santa Fe Ry. Co. v. United

States, 556 U.S. 599 (2009) .............................. 15

Consolidated Edison Co. of New York, Inc. v.

UGI Utilities, Inc., 423 F.3d 90 (2d Cir.

2005) .................................................................... 5

Florida Power Corp. v. FirstEnergy Corp., 810

F.3d 996 (6th Cir. 2015) ................................... 12

Gov't. of Guam v. United States, 950 F.3d 104

(D.C. Cir. 2020) ................................... 4, 9, 10, 11

Hobart Corp. v. Waste Mgmt. of Ohio, Inc.,

758 F.3d 757 (6th Cir. 2014) .............................. 5

NRM Corp. v. Hercules, Inc., 758 F.2d 676

(D.C.Cir.1985) ..................................................... 9

Niagara Mohawk Power Corp. v. Chevron

USA, Inc., 596 F.3d 112 (2d Cir. 2010) .............. 5

iv

Refined Metals Corp. v. NL Industries Inc.,

937 F.3d 928 (7th Cir. 2019) .............................. 5

Segar v. Mukasey, 508 F.3d 16 (D.C. Cir.

2007) .................................................................... 9

Trinity Industries, Inc. v. Chicago Bridge &

Iron Co., 735 F.3d 131 (3d Cir. 2013)........... 5, 12

W.R.Grace & Co.-Conn. v. Zotos Int'l, Inc., 559

F.3d 85 (2d Cir.2009) .............................. 5, 11, 12

OTHER AUTHORITIES

Clean Water Act ................................................ passim

Comprehensive Environmental Response and

Compensation Act..................................... passim

Jonathan Wood, Prospecting for Pollution,

The Need for Better Incentives to Clean

Up Abandoned Mines, Property and

Environmental Research Center, Feb.

2020 ..................................................................... 8

Resource Conservation and Recovery Act .................. 7

Toxic Substances Control Act ..................................... 7

Safe Drinking Water Act ............................................ 7

1

INTEREST OF AMICUS CURIAE

ConservAmerica Inc. is a 501(c)(3) organization

focused on addressing conservation, environmental,

and energy challenges through market-based

solutions.1 Our core mission is to advocate for sound

laws and public policies that produce clean air, clean

and safe water, and healthy public lands. More

specifically,

ConservAmerica

promotes

wise

management of our nation’s public lands and water

resources through responsible stewardship, rule of

law, and holding polluters responsible for

environmental pollution and degradation.

ConservAmerica

promotes

policies

that

incentivize landowners and third parties to clean up

properties caused by legacy polluters. In most cases,

the landowners did not cause or contribute to the

pollution but desire to voluntarily clean up legacy

pollution, such as that caused by historic mining and

resource extraction industries.

For example,

America’s gold rush in the 1800s resulted in

thousands of abandoned hardrock mines. The U.S.

EPA has estimated that over 500,000 of these

abandoned mines litter the western landscape. And

thousands of miles of U.S. streams and rivers are

Pursuant to this Court’s Rule 37.6, we note that no part of

this brief was authored by counsel for any party, and no person

or entity other than the ConservAmerica or its supporters

made any monetary contribution to the preparation or

submission of the brief. Pursuant to Rule 37.3(a), counsel for

amicus also represents that the parties have consented to the

filing of this brief.

1

2

polluted and lifeless due to toxic, acid mine drainage

from these legacy mines. Many third parties,

including innocent landowners, desire to clean these

watersheds under Good Samaritan agreements with

landowners and state resource agencies.

These Good Samaritan agreements provide

greater certainty regarding the scope of the work

and potential liability of these third parties,

including the landowners who by virtue of their

ownership status are potentially responsible parties

(PRPs) under the Comprehensive Environmental

Response, Compensation, and Liability Act

(CERCLA) and liable under Clean Water Act (CWA)

for unpermitted discharges. As discussed infra, the

D. C. Circuit opinion adds greater uncertainty and

confusion involving the outcome of Good Samaritan

cleanups.

ConservAmerica has an abiding interest in

preserving the vibrant growth of Good Samaritan

cleanups that are needed to restore America’s

polluted lands. Any uncertainty regarding the scope

and implications of cleanup agreements will

certainly result in fewer voluntary cleanups in the

future.

SUMMARY OF ARGUMENT

Section 113(f)(3)(B) of CERCLA states that a

settlement agreement triggers a contribution claim

when a settling party has “resolved its liability to a

State or the United States for some or all of a

response action” in a qualifying settlement. In

evaluating the section 113(f)(3)(B) contribution

3

trigger, the D.C. Circuit Court of Appeals joined a

majority of circuits that look to the terms of the

settlement agreement at issue under basic principles

of contract law to determine whether the agreement

meets the requirements of the statute and do not

necessarily require that the settlement agreement

specifically reference CERCLA.

The majority of the Circuits have found that a

case-specific, fact-specific, settlement-specific inquiry

is appropriate.

After correctly stating the

appropriate standard, however, the D.C. Circuit

focused its evaluation simply on whether the

obligation contained in the settlement agreement at

issue could be considered a response action, as that

term is broadly defined in CERCLA, rather than

giving weight to the numerous other provisions in

the 2004 Consent Decree, based on the intent of the

parties and the four corners of the agreement that

limit the scope and finality of the agreement. The

Court failed to apply traditional principles of

contract law to uphold the terms of the agreement

between the parties.

CERCLA was enacted to serve the dual purposes

of expediting cleanups and holding polluters

accountable.

The D.C Circuit’s opinion serves

neither goal and also risks a chilling effect in agency

cooperation with landowners to expedite the cleanup

of polluted lands. The Court even acknowledges its

“harsh” result that has the practical effect of

shielding from any responsibility the party that here

“deposited dangerous munitions and chemicals at

the Ordot Dump for decades and left Guam to foot

4

the bill.” Gov’t. of Guam v. United States, 950 F.3d

104, 118 (D.C. Cir. 2020).

In overturning the District Court, the D.C.

Circuit created a precedent that makes settlement

more difficult and uncertain, thus delaying cleanups,

and allowing polluters to walk free at the expense of

the settling party, thereby endangering both public

and private lands.

ARGUMENT

I. THE D.C. CIRCUIT COURT CORRECTLY

FOLLOWED THE MAJORITY VIEW THAT

CERCLA SECTION 113(F)(3)(B) DOES NOT

REQUIRE A SETTLEMENT TO RESOLVE

CERCLA SPECIFIC LIABILITY IN ORDER

FOR THE SETTLEMENT TO TRIGGER A

CONTRIBUTION ACTION.

Petitioner Guam first addresses whether Section

113(f)(3)(B) is triggered by a non-CERCLA

settlement that does not resolve liability imposed by

CERCLA.

Guam argues that in order for a

settlement or consent decree to trigger a

contribution claim, there must be an express

reference to CERCLA liability. This view has been

rejected by a majority of the Circuits that have

considered it, and appropriately so.

The D.C. Circuit correctly sided with the Third,

Seventh and Ninth Circuits on the issue of whether

the language in a settlement agreement or consent

decree must specifically refer to CERCLA to trigger

a possible contribution action under section

5

113(f)(3)(B). See Trinity Industries, Inc. v. Chicago

Bridge & Iron Co., 735 F.3d 131, 136 (3d Cir. 2013);

Refined Metals Corp. v. NL Industries Inc., 937 F.3d

928, 932 (7th Cir. 2019); Asarco LLC v. Atl. Richfield

Co., 866 F.3d 1108, 1117 (9th Cir. 2017).2

The

Courts recognize that section 113(f)(3)(B) does not

contain language requiring that an action be taken

under CERCLA whereas other sections such as

section 107 do contain CERCLA specific references,

leading to the conclusion that a settlement

agreement can trigger 113(f)(3)(B) even if it never

mentions CERCLA.3

The Second Circuit found references to CERCLA were

necessary to trigger contribution because “response action” is a

CERCLA-specific term in Consolidated Edison Co. of New York,

Inc. v. UGI Utilities, Inc., 423 F.3d 90, 95 (2d Cir. 2005). Later,

the Court reinforced this position, finding references to

CERCLA particularly relevant to state agency settlements in

W.R.Grace & Co.–Conn. v. Zotos Int'l, Inc., 559 F.3d 85, 91 (2d

Cir.2009). However, in a footnote, the Second Circuit later

admitted “the force” of statutory arguments against this

position. Niagara Mohawk Power Corp. v. Chevron USA, Inc.,

596 F.3d 112, 126 n.15 (2d Cir. 2010).

2

Though not appropriate for a determinative universal rule

based on statutory construction, however, the absence of any

reference to CERCLA – particularly in a Clean Water Act

settlement riddled with language specific to Clean Water Act

permit violations – is strong evidence of a contractual intent

not to resolve CERCLA response action liability, as discussed

further herein. See Hobart Corp. v. Waste Mgmt. of Ohio, Inc.,

758 F.3d 757, 771 (6th Cir. 2014) (comparing settlement

contracts containing CERCLA reference against those without

it) (citing W.R. Grace, 559 F.3d at 91).

3

6

A. A Strict Requirement for CERCLA

Specific Language Would Undermine SiteSpecific Negotiations and Undo Existing

Agreements.

Petitioner Guam’s effort to create a universal

standard by contending that section 113(f)(3)(B)

requires a reference to CERCLA undermines sitespecific negotiations. The proper inquiry should be

based on an evaluation of the intent of the parties to

meet the requirements of the statute at the time of

the agreement under contract law.

Landowners and other interested parties have

addressed

various

types

of

environmental

remediation matters in the past by settlements

pursuant to federal and state environmental laws,

including those that left open the ability to pursue

other responsible parties and other remedies at a

later date after the scope and costs of remedial

actions were more certain. Many settlements are

old, before agency templates changed and the

possibility of a CERCLA contribution claim became

better understood. Creating a new requirement to

reference CERCLA undermines these site-specific

negotiations.

Settlements

with

state

and

federal

environmental agencies often contain language

specific to a cleanup that does not always fit neatly

into a universal rule. “Response” actions are not

limited to just CERCLA; such actions can be taken

under other federal laws, including the CWA, the

7

Resource Conservation and Recovery Act (“RCRA”),

the Toxic Substances Control Act (TSCA), and even

the Safe Drinking Water Act, and parallel state

laws. Language regarding the rights reserved by

either settling party can vary based on the type of

pollution involved, the number of other potentially

responsible parties, the complexity of the anticipated

cleanup and other site conditions, and the scope of

the intended agreement. Creating a blanket rule

requiring specific reference to CERCLA leaves these

bargained-for provisions subject to reinterpretation

and exposes settling parties to additional risk after

they have come forward to mitigate environmental

harm.

In the case of legacy mine cleanups, many

parties, including Good Samaritans who engage in

the voluntary cleanup of abandoned mines desire

finality – and contribution protection – from a full

resolution of response action liability. Other sites

might require an open-ended agreement that lays

the framework for cleanup but allows the settling

party to reserve all of its rights against other

polluters, particularly in complex cleanups where

further litigation is expected but harm to the

environment must be immediately mitigated.

Negotiations with state and federal agencies

play a critical role in CERCLA. A universal rule –

whether it is a reference to CERCLA as Guam

argues, or whether any obligation might later be

classified as a “response” as the United States

argues – undermines these site-specific negotiations

8

and creates exposure for settling parties. This is

particularly

true

of

the

landowners

who

ConservAmerica

encourages

to

clean

up

contaminated properties they own. While some

Good Samaritans certainly can receive contribution

protection from final resolutions with environmental

agencies that broadly resolve CERCLA response

action liability, state resource agencies and Good

Samaritan parties often set issues of historic liability

aside in order to conduct the cleanup without further

delay.4

These voluntary cleanups under Good

Samaritan agreements should not have the

settlements reopened under a new, universal rule

that may leave landowners and other third parties

who voluntarily initiated cleanups exposed to further

litigation or without a remedy to force the parties

that contributed to polluting the land to take

responsibility.

II. THE DC CIRCUIT ERRED BY FAILING

TO APPLY TRADITIONAL PRINCIPLES OF

CONTRACT LAW IN INTERPRETING THE

2004 CONSENT DECREE.

The D.C. Circuit, in similar language and

reasoning to that used by a majority of the Circuits,

correctly noted that whether or not liability is

resolved through a settlement “is unanswerable by a

See Jonathan Wood, Prospecting for Pollution, The Need for

Better Incentives to Clean Up Abandoned Mines, Property and

Environmental Research Center, Feb. 2020, available at:

https://www.perc.org/wp-content/uploads/2020/02/prospectingfor-pollution-abandoned-mines.pdf

4

9

universal rule” and the correct standard should

require examination of “the terms of the settlement

on a case-by-case basis.” Gov’t. of Guam v. United

States, 950 F.3d 104, 114 (D.C. Cir. 2020) (quoting

Bernstein v. Bankert, 733 F.3d 190, 213 (7th Cir.

2013)). The D.C. Circuit has previously found that

“because a consent decree ... is essentially a contract,

a court's construction of a consent decree is

essentially a matter of contract law,’” Id. (quoting

Segar v. Mukasey, 508 F.3d 16, 21 (D.C. Cir. 2007).5

A. After Articulating the Correct Standard,

the D.C. Circuit Failed to Properly Apply

Traditional Principles of Contract Law When

Interpreting the 2004 Consent Decree.

Evaluating a settlement agreement is a factspecific inquiry conducted pursuant to traditional

principles of contract law. In evaluating the 2004

Consent Decree, the D.C. Circuit strayed from that

standard in three ways.

First, the D.C. Circuit openly reinterpreted the

context and purpose of a liability disclaimer by

“Where that consent decree binds the United States, that

contract is ‘governed exclusively by federal law[.]’” Id. at 114115 (quoting Boyle v. United Technologies Corp., 487 U.S. 500,

504 (1988). The federal common law of contracts largely

“dovetails” with “general principles of contract law.” NRM

Corp. v. Hercules, Inc., 758 F.2d 676, 681 (D.C.Cir.1985). Thus,

“the judicial task in construing a contract is to give effect to the

mutual intentions of the parties.” Id. at 682. “Contractual

provisions are interpreted taking into account the contract as a

whole, so as to give effect, if possible, to all of the provisions in

the contract.”

5

10

refusing to take the provision “at its word.” In the

absence of language to the contrary, the plain terms

of a contract control and all terms must be given

effect wherever possible. The parties agreed that the

2004 Consent Decree did not make a single finding

of fact relevant to the critical issue of liability, and

thus the parties cannot be said to have “resolved”

any liability at all. Simply because the parties also

agreed to start cleanup of a contaminated site does

not change that analysis. Absent a countervailing

clause of similar directness and force, “it is very

difficult to say, in light of [such a disclaimer], that

the agreement between the parties constituted a

resolution liability.” Bernstein, 733 F.3d at 212. As

the District Court found, “taken together,” numerous

clauses go to the parties’ mutual intent of leaving

liability open-ended. Guam v. United States, 341

F.Supp.3d at 94. The broad disclaimer is in line with

other substantive provisions of the agreement that

show the 2004 Consent Decree left liability openended.

Second, the D.C. Circuit erroneously dismissed

express reservations of rights and limitations on

Guam’s release that demonstrated the open-ended

nature of the settlement. Such provisions fully align

with the broad disclaimers of liability. The Court

erred when it found that a reservation of the United

States’ unlimited rights to pursue Guam for any

“violations unrelated to the claims in the Complaint”

did not undermine the resolution of response action

liability. Guam v. U.S., 950 F.3d at 116. This

provision clearly limits the scope of the 2004

11

Consent Decree only to claims in the underlying

Complaint. The D.C. Circuit correctly noted that the

liability released in the 2004 Consent Decree is

limited to only “the claims as alleged in the

Complaint.” Id. The claims alleged in the underlying

action are only for CWA permit violations relating to

leachate discharge.

The parties never contemplated CERCLA nor

should they since the Government’s enforcement

action was brought solely under the CWA.

Accordingly, Guam does not have a release as to any

of its CERCLA response action liability. Asarco, 866

F.3d at 1125 (finding no resolution of liability

because “the release from liability covers none of the

‘corrective measures’ – i.e., response actions –

mandated by the agreement”); W.R. Grace, 559 F.3d

at 87 (finding no contribution claim where release

was only for state law claims and did not include

CERCLA claims).

Guam has only a limited,

conditional release for claims related to its leachate

permit violations. CERCLA’s historic, retroactive,

strict liability regime is unrelated to a claim for

CWA permit violations. Here, CERCLA liability is

unaddressed by the scope of the narrow and

conditional release and, as the District Court found,

its exclusion is further emphasized by the United

States’ broad reservation of rights.

Before the D.C. Circuit issued its opinion, every

Court to evaluate express reservations of rights and

narrow releases like those in the 2004 Consent

Decree gave those clauses effect. Those Courts found

such provisions undermine the finality of the

12

agreement and preclude a contribution claim. See,

e.g, Asarco, 866 F.3d at 1125-26 (finding, among

other reservations, like here, there is no resolution

where “the Decree’s release from liability covers

none of the ‘corrective measures’ – i.e., response

actions – mandated by the agreement” and “is

replete with references to . . . continued legal

exposure”); Fla. Power Corp., 810 F.3d at 1003 (“The

parties to a settlement may choose to structure their

contract so that liability is resolved immediately

upon execution of the contract. Or, the parties may

choose to leave the question of liability open through

the inclusion of reservations of rights, conditional

covenants, and express disclaimers of liability.”)

(quoting Bernstein, 733 F.3d at 214); W.R. Grace &

Co.–Conn. v. Zotos Intern., Inc., 559 F.3d 85, 91 (2d

Cir.2009) (finding a broad reservation of rights in a

settlement, “which makes no reference to CERCLA,

establishes that the DEC settled only its state law

claims against Grace, leaving open the possibility

that the DEC or the EPA could, at some future point,

assert CERCLA or other claims”); Trinity Industries,

Inc. v. Chicago Bridge & Iron Co., 735 F.3d 131, 137

(3d Cir.2013) (finding a contribution claim was

triggered where CERCLA was built into state law

standards, and thus “the resolution of [state law]

claims necessarily means resolution of claims under

CERCLA, alleviating the concern expressed by the

Court of Appeals for the Second Circuit [regarding

exposure to future claims through reserved rights]”);

Id. at 137 n.3 (contrasting “considerably broader”

release at issue with the narrow release and broad

reservations of rights in W.R. Grace to find

13

contribution claim triggered due to lack of reserved

rights).

The D.C. Circuit erroneously relied on the fact

that the statute only requires resolution of liability

for “some” of a response action to justify its rejection

of the relevance of both the narrow release and the

United States’ broadly reserved rights. But this

argument makes little sense. That only “some”

liability must be resolved does not change the

requirement that some response action liability be

addressed with the requisite finality to actually be

resolved. A release that does not cover CERCLA

liability resolves no CERCLA liability. The same is

true where a broad reservation of rights preserves

ongoing legal exposure for the settling party.

Without a resolution of liability, no contribution

claim arises in such a settlement.6

Third, the D.C. Circuit focused too heavily on the

nature of the response action contained in the

settlement, and not the key issue, which is whether

liability for that response action was actually

resolved by the agreement.

The fact that a

settlement agreement simply includes a response or

The “some” liability limitation is better read as instead

tracking the scope of the contribution claims granted to a

settling party, as resolving liability for a portion of a cleanup

only grants a contribution claim proportionate to the scope of

that obligation. It is entirely common for CERCLA cleanups to

involve multiple, iterative settlements. See e.g. Bernstein, 733

F.3d 190 (involving two settlements covering different pieces of

an iterative cleanup).

6

14

cleanup task that can later fit the broad definition of

a CERCLA response is not enough to trigger a

contribution claim. Such a provision is entirely

inconsistent with other clauses demonstrating a

desire to set aside issues of liability but nevertheless

begin to conduct a response action.

Not every settlement addresses liability with the

requisite finality to trigger a contribution claim.

Prior to the D.C. Circuit’s opinion, courts recognized

that parties reaching a settlement involving a

response action is not the end of the inquiry. Asarco,

866 F.3d at 1125. In contrast, the D.C. Circuit

opinion prioritizes whether the obligation contained

in a settlement can later be classified as a response

action above all other clauses in the contract. Such

an approach renders other material, bargained-for

contractual clauses irrelevant and without effect.

The correct inquiry is not merely whether a

settlement involves an obligation to conduct a

response action, but instead, whether a settlement

includes a resolution of liability for a response

action pursuant to CERCLA. All of the clauses in

the contract matter and must be given effect. The

D.C. Circuit’s standard suggests it is possible to set

aside consideration of the underlying claims

addressed, the scope of release, any reservations of

rights, and even the express disclaimers that say the

exact opposite of the Court’s findings. The D.C.

Circuit skipped the rest of the case-by-case, factspecific, settlement-specific inquiry and jumped to

the end after determining the cleanup could qualify

as a CERCLA response. This approach undermines

15

the ability of the parties to reach an agreement

resolving certain issues but not addressing future

CERCLA liability. As such, it impinges upon the

contractual rights of the parties.

B. The Court’s Ruling Is Counter to the

Goals of CERCLA and Will Allow Parties

Responsible for Pollution to Escape Liability

for the Pollution They Caused.

By not giving the relevant contractual clauses

their proper weight, the D.C. Circuit undermined the

two main goals of CERCLA – expediting cleanup and

holding polluters accountable. Burlington N. &

Santa Fe Ry. Co. v. United States, 556 U.S. 599, 602

(2009). In practice, the admittedly “harsh” result

reached by the D.C. Circuit of allowing a polluter to

walk free at a settling party’s expense makes it more

difficult for settling parties to clean up the

environment without risking their rights against

other PRPs.

This is particularly dangerous in large cleanups

where all sources, parties, and contamination might

not be known until years after the start of a cleanup.

The D.C. Circuit’s decision thus creates a chilling

effect that inhibits agency cooperation and the

mitigation of environmental harm. A party facing

non-CERCLA litigation has little incentive to settle

and begin cleanup if the parties cannot expressly

limit the scope of that agreement as desired.

Under the United States and D.C. Circuit’s

interpretation of the 2004 Consent Decree, the

easiest way for a party in Guam’s position to protect

16

all of its rights is by simply doing nothing. The D.C.

Circuit found that any settlement with a response

action obligation resolves liability and triggers

limitations, regardless of express disclaimers and

reservations to the contrary. Indeed, pursuant to

section 113(f)(1), even a judgment against Guam in

the CWA action would not have barred its claims

here – only its willingness to settle and begin

cleanup put Guam at risk. Language protecting such

a party must be given its full force and effect.

CONCLUSION

For the foregoing reasons, the judgment below

should be reversed.

Respectfully submitted,

JEFFREY KUPFER

BRENT FEWELL

CONSERVAMERICA

1455 Pennsylvania Ave., N.W.

Suite 400

Washington, D.C. 20001

(202) 664-9297

JOHN A. SHEEHAN*

LINDENE PATTON

EARTH & WATER LAW LLC

1455 Pennsylvania Ave, N.W

Suite 400

Washington, D.C. 20001

(301) 980-5032

john.sheehan@earthandwatergroup.com

*Counsel of Record

Counsel for Amicus Curiae