United States v. Stephen Elder

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 5, 2020
• Docket: 18-15878
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION OCT 5 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA; No. 18-15878 CALIFORNIA DEPARTMENT OF TOXIC SUBSTANCES CONTROL, D.C. No. 2:08-cv-02556-MCE-DB Plaintiffs-Appellees,

v. MEMORANDUM*

STEPHEN P. ELDER,

Defendant-Appellant,

and

STERLING CENTRECORP INC.,

Defendant.

Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., District Judge, Presiding

Submitted October 25, 2019** San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: MELLOY,*** BYBEE, and N.R. SMITH, Circuit Judges.

Stephen Elder appeals from the district court’s grants of summary judgment,

concluding that he is jointly and severally liable under the Comprehensive

Environmental Response, Compensation, and Liability Act (“CERCLA”) for

response costs incurred by the governments at the Lava Cap Mine Superfund Site

(“Site”), of which he is partial owner. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

1. Elder does not contest that the four elements for strict liability under

CERCLA are satisfied in this case. See Cose v. Getty Oil Co., 4 F.3d 700, 703–04

(9th Cir. 1993). Therefore, Elder is jointly and severally liable for the entire cost

of the cleanup, see Cal. Dep’t of Toxic Substances Control v. Hearthside

Residential Corp., 613 F.3d 910, 912, 916 (9th Cir. 2010); see also 42 U.S.C.

§§ 9607(a)(4)(A), 9613(g)(2), unless he can establish that one of CERCLA’s three

affirmative defenses are applicable, see California v. Neville Chem. Co., 358 F.3d

661, 672 (9th Cir. 2004). The district court properly granted summary judgment

because the asserted statutory defenses are unavailable in this case.

*** The Honorable Michael J. Melloy, United States Circuit Judge for the U.S. Court of Appeals for the Eighth Circuit, sitting by designation. 2 First, the “act of God” defense cannot be applied here, because Elder failed

to carry his statutory burden to establish that the storm alone caused the dam

collapse. See 42 U.S.C. § 9607(b)(1). Indeed, Elder does not argue that the storm

was the sole cause of the dam collapse. Elder also admits in his counterclaim that

the dam’s failure was predictable due to its precarious condition.

Elder’s asserted third-party defense also fails, because he was not an

“innocent landowner.” See Cal. Dep’t of Toxic Substances Control v. Westside

Delivery, LLC, 888 F.3d 1085, 1091–92 (9th Cir. 2018); see also Carson Harbor

Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 887 (9th Cir. 2001) (en banc).

Specifically, there is no evidence that, at the time he acquired the facility, Elder

“did not know and had no reason to know that any hazardous substance . . . was

disposed of on, in, or at the facility” as required by 42 U.S.C. § 9601(35)(A)(i).

See Westside Delivery, 888 F.3d at 1092. Furthermore, there is no evidence that

the State’s failure to enforce prior environmental orders alone caused the releases

at the Site. See 42 U.S.C. § 9607(b).

2. Elder’s statute-of-limitations argument is waived, because he did not raise it

below. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). Elder argues

that he raised the defense in his answer before the district court when he asserted

that “[t]he [governments,] because of their failure to enforce the [order] issued by

3 them in 1979 to these Defendants’ predecessor in interest[,] are estopped from

claiming response costs from these defendants.” But this claim of estoppel was not

based on a statute-of-limitations rationale. Rather, Elder merely restated his

unsuccessful argument that the government should be the liable party, because they

“fail[ed] to enforce the [order] issued by them in 1979.” This language cannot

logically be read to state a statute-of-limitations claim.

3. The district court did not err in denying Elder a jury trial for two reasons: (1)

Elder has alleged no dispute of material fact to show that the district court erred in

granting the governments’ summary judgment pursuant to Fed. R. Civ. P. 56(a);

and (2) jury trials are not required where only equitable relief is sought, as is the

case here under CERCLA, see Spinelli v. Gaughan, 12 F.3d 853, 858 (9th Cir.

1993).

AFFIRMED.