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Wickland Oil Terminals v. Asarco, Inc.

Citation: 17 ELR 20688
No. No. C-83-5906 SC, 654 F. Supp. 955/26 ERC 1144/(N.D. Cal., 02/05/1987) Motion to dismiss state

The court holds that the Eleventh Amendment does not bar Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) response cost claims against the California State Lands Commission. Although the Eleventh Amendment grants sovereign immunity to states in federal court, Congress can abrogate this immunity under its Commerce Clause powers if it expresses its intent unequivocally. Noting that CERCLA was enacted pursuant to the Commerce Clause, that the Act's definition of "person" includes states and their political subdivisions, and that CERCLA response cost actions can only be brought in federal court, the court holds that Congress has abrogated states' immunity under CERCLA § 107. The Commission's reliance on a case in which a statute had originally excluded states from liability and was later amended without explanation to include states within the relevant portion of the definitional section is misplaced, since all that case held is that Congress must express its intent clearly. The waiver of states' immunity in § 107 can also be distinguished from the waiver of the federal government's sovereign immunity contained in CERCLA § 107(g). Section 107(g) is at most redundant and § 120(a) makes clear that the waiver of the federal government's immunity does not affect the liability of any other entities. Moreover, the 1986 CERCLA Amendments added a provision to § 101's definition of "owner or operator" that exempts state and local government in narrow circumstances; there would be no reason to create such an exemption unless states were generally liable under CERCLA.

The court also holds that the private parties may not file judicial claims against the California State Lands Commission for equitable indemnity, because they have not satisfied the timing requirements for first filing the claims administratively with the state.

[Related opinions appear at 14 ELR 20494 and 16 ELR 20754.]

Counsel for Plaintiff
Joseph A. Darrell
Thelen, Marrin, Johnson & Bridges
Suite 2200, Two Embarcadero Ctr., San Francisco CA 94111
(415) 392-6320

Counsel for Defendant
C. MacNeil Mitchell
Breed, Abbott & Morgan
1875 Eye St. NW, Washington DC 20006
(202) 466-1100