Aztec Minerals Corp. v. United States Environmental Protection Agency

No. 98-1380 (10th Cir. October 25, 1999)

ELR Digest

The court holds that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 113(h) precludes judicial review of a CERCLA § 104(e) access order that required the U.S. Environmental Protection Agency (EPA) to have access to an abandoned mine in order to conduct a CERCLA response action. The court first holds that the order's restrictions on the mine owner's access to and transfer of the mine do not fall within one of the five CERCLA § 113(h) categories that permit challenges to CERCLA removal and/or remedial activities. Further, because the limitations imposed by the order are necessary to protect public health and the environment, the order constitutes a removal and/or remedial action. The court next holds that CERCLA § 113(h) bars the mine owner's claim that EPA's activities at the mine violated the Fifth Amendment's Due Process Clause because the owner's constitutional claims do not fall with one of CERCLA § 113(h)'s judicial review exceptions. The court then holds that CERCLA § 113(h) bars the owner's property rights claims even if the harm to the property is irreparable.

The full text of this opinion is available from ELR (5 pp., ELR Order No. L-101).

Counsel for Plaintiffs
Donn L. Calkins
Gablehouse & Epel
1050 17th St., Ste. 1730, Denver CO 80265
(303) 844-3433/572-0050

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

[30 ELR 20113]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]