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Razore v. Tulalip Tribes of Wash.

ELR Citation: 26 ELR 20063
Nos. Nos. 94-35985, -36244, 66 F.3d 236/41 ERC 1701/(9th Cir., 09/19/1995)

The court holds that a remedial investigation/feasibility study (RI/FS) is a removal action and, therefore, that §113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) bars judicial review of a challenge to an ongoing RI/FS at a contaminated landfill on the Tulalip Indian Reservation. The court first holds that an RI/FS is a removal action, because it falls within CERCLA §101(23)'s definition of a removal action. The court also holds that this suit constitutes a challenge to the removal action and, therefore, triggers §113(h)'s bar to judicial review. Plaintiffs' claims under the Resource Conservation and Recovery Act (RCRA) and Federal Water Pollution Control Act (FWPCA) are a challenge to the action because they would affect the ongoing RI/FS and are sufficiently related to the goals of the CERCLA cleanup. The court rejects plaintiffs' argument that without citizen suit enforcement, §113(h) works to extinguish those obligations under the FWPCA and RCRA that CERCLA's savings provision, §302(d), expressly preserves for the tribes and the U.S. Environmental Protection Agency. Section 113(h)'s temporary bar to citizen enforcement does not change the tribes' obligations under the FWPCA or RCRA, because §302(d) does not write §113(h) out of the Act. The court next holds that the district court did not abuse its discretion by not allowing additional discovery, which plaintiffs asserted could have demonstrated that RCRA and FWPCA compliance would not have challenged the CERCLA removal action. Finally, the court holds that the district court did not abuse its discretion in denying the tribes' request for attorney fees. Plaintiffs' §113(h) jurisdictional arguments are not frivolous or unreasonable, because the court had not previously addressed them.

Counsel for Plaintiffs
Roger Truitt
Piper & Marbury
Charles Center S., 36 S. Charles St., Baltimore MD 21201
(410) 539-2530

Counsel for Defendants
Joan M. Pepin
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Noonan, Thompson,* and Hawkins, JJ.