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Insurance Law

Shoot Out at the Otay Corral

Shooting ranges may pose hazards to humans or the environment from lead in discharged munitions. A recent U.S. Court of Appeals for the Ninth Circuit opinion, however, dismissed a property owner’s claims seeking lead-related clean-up costs as unripe. Current property owners in Otay Land Company v. United Enterprises Ltd., 2009 U.S. App. LEXIS 16294 alleged that the former owners/operators of a shooting range were responsible under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) and the Resource Conservation and Recovery Act (RCRA) for costs of removing lead and other pollutants deposited on the land.
 
The court held otherwise relying on several prior cases. However, the Chief Judge dissented arguing that the plaintiff should at least have “a chance to present evidence.” In reaching its holding the majority relied on the following: “Private parties have the burden of proving that cleanup costs associated with remedial actions are consistent with the National Contingency Plan to recover those cleanup costs under CERCLA.” Carson Harbor Vill., Ltd. v. County of L.A., 433 F.3d 1260, 1265 (9th Cir. 2006).
 
The Court found the available evidence too vague: “Absent a reliable basis to determine the clean-up costs, [plaintiff’s] action was premature.” See id.; see also Natural Res. Def. Council (NRDC) v. Abraham, 388 F.3d 701, 705-07 (9th Cir. 2004). The plaintiff’s related challenge of the award of costs against it faired no better.
 
The current property owner challenged the district court’s award of costs primarily on the basis that Defendants/Appellees were not prevailing parties pursuant to Fed. R. Civ. P. 54(d). Because the case was dismissed for want of jurisdiction under 28 U.S.C. § 1919, the Ninth Circuit did not strike down the cost award and remanded. The federal statute “is permissive and does not turn on which party is the prevailing party.” See Miles v. California, 320 F.3d 986, 988 n.2 (9th Cir. 2003).
 
The former property owners on the other hand, challenged the lower court’s denial of attorneys’ fees and costs to them pursuant to the RCRA. Because the current property owner’s action was not “frivolous, unreasonable, or without foundation...” The Ninth Circuit affirmed the lower court citing Razore v. Tulalip Tribes of Wash., 66 F.3d 236, 240 (9th Cir. 1995).
 
On dissent, the majority’s decision struck the Chief Judge as “as unfair and inappropriate [because the] plaintiff’s case [was dismissed] for failing to present proof when it had no notice proof was needed.”
 
Indiscriminant shooting can result in high concentrations of lead or other metals in the environment. This, in turn, can then cause lead to bio-accumulate. The right to bear arms, homeland security issues, and the law enforcement communities’ need to practice and qualify with respect to marksmanship may have played a rule in the Court’s considerations. So too the difficulty in investigating and cleaning up lead shot and the broad implications if such cleanup were required under Superfund or otherwise likely were factors. In the early 1990s, the Second Circuit in Connecticut Coastal Fishermen’s Ass’n v. Remington Arms Co., Inc., 989 F.2d 1305 (2nd Cir. 1993) refused to apply the Clean Water Act or RCRA to a firing range – although certain RCRA related clean-up was required. The above Otay case appears to reflect the continuing reluctance of federal courts to expand the reach of CERCLA and RCRA to this particularly American activity, especially when land developers cast a wide net in seeking to off-set environmental clean-up costs.
 
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