On July 19th, the Tenth Circuit determined that the U.S. government is liable for environmental contamination at a mining site operated by Chevron and other mining entities under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 9601 et seq. Chevron Mining Inc. v. United States, No. 15-2209, 2017 WL 3045887, at *1 (10th Cir. July 19, 2017). Anticipated cleanup costs exceed $1 billion. Under the 1872 General Mining Act, 30 U.S.C. § 22, the U.S. government holds legal title and mining patents or claims are filed to specific portions of federal property.
The 10th Circuit reversed the District Court of New Mexico’s holding that the U.S. government was not an “owner” under CERCLA, a decision based largely upon United States v. Friedland, 152 F. Supp. 2d 1234 (D. Colo. 2001) which held that the United States, as “bare legal title holder to unpatented mining claims,” did not qualify as an “owner” for purposes of CERCLA liability. See lower decision at Chevron Mining, Inc. v. United States, 139 F. Supp. 3d 1261, 1276 (D.N.M. 2015). The Tenth Circuit held that ‘owner’ under CERCLA includes the United States regardless of the General Mining Act’s patent and claim mechanisms. The court noted that under the General Mining Act, the United States encouraged and promoted mining activities. The 10th Circuit Court of Appeals, however, found that the United States is not an “arranger” under 42 U.S.C. § 9607(a)(3) because it did not own or possess the hazardous substances disposed of, affirming the District Court of New Mexico’s conclusion.