United States May Be Liable as an “Owner”, but not as an “Arranger”, at Former Mining Sites on Federal Property

In a decision that opens the door for Superfund claims against the United States on Forest Service and BLM lands, the Tenth Circuit Court of Appeals recently ruled that the United States federal government may be liable for clean-up costs at former mining sites located on federal land.  In Chevron Mining, Inc. v. United States, No. 15-2209 (10th Cir. Jul. 19, 2017), the appellate Court recognized that “the United States is an ‘owner,’ and, therefore, a [potentially responsible party under CERCLA], because it is strictly liable for its equitable portion of the costs necessary to remediate the contamination arising from mining activity on federal land.”  The government had argued that it should not be found liable due to the limited nature of its rights under the General Mining Act of 1872, which provided the holders of the unpatented mining claims at issue the exclusive right to possession of the surface of such claims.  Specifically, the government argued that, because it did not have any indicia of control over the unpatented mining claims at issue, it should not be considered an “owner” for purposes of CERCLA.  The Tenth Circuit, relying on the breadth of CERCLA’s statutory liability scheme and Congress’s Property Clause power, rejected the government’s argument and explained that “at a minimum, the term ‘owner’ covers fee title holders for purposes of CERCLA liability, irrespective of any additional indicia of ownership.”  The Court did, however, uphold the lower court’s ruling that the government was not an “arranger” for purposes of CERCLA liability, as the government did not own or possess the hazardous substances and mining wastes that were disposed at the site.

The Court remanded the case to the District Court to determine the federal government’s equitable share of remediation costs.  In doing so, the Court noted that a legal title owner might only be liable for a very small share, or no share, of remediation costs.  Given the Court’s ruling, expect to see additional claims asserted against the United States on historical mining properties located on federal land.

Image Courtesy of: the Bureau of Land Management used under Creative Commons License.