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Pakootas v. Teck Cominco Metals, Ltd.

ELR Citation: 48 ELR 20165
Nos. 16-35742, (9th Cir., 09/14/2018)

The Ninth Circuit affirmed a district court's ruling that a Canadian smelter company that dumped several million tons of industrial waste into the Columbia River was liable for a Native American tribe's response costs. The company argued that CERCLA did not allow the tribe to recover its costs of establishing the company's liability. But the appellate court disagreed, finding that investigations by the tribe's expert consultants qualified as recoverable costs of removal under CERCLA, even though many of the activities played double duty supporting both cleanup and litigation efforts, and that the district court properly awarded the tribe its investigation costs. The company also argued there should be a trial to determine whether its liability was divisible and therefore less than the total sum of the cleanup costs. But the appellate court concluded there was no triable issue as to whether the company had sufficient evidence to prove the defense. The appellate court therefore affirmed the district court's judgment holding the company jointly and severally liable for the tribe's response costs.