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Long Beach Unified Sch. Dist. v. Dorothy B. Godwin Living Trust

United States Court of Appeals for the Ninth Circuit

May 4, 1994, Argued, Submitted, Pasadena, California ; July 14, 1994, Filed

No. 92-56562


 [*1365]  OPINION

KOZINSKI, Circuit Judge.

We must decide whether the holder of an easement burdening land which contains a hazardous waste facility is, by virtue of that interest alone, liable for cleanup costs as an "owner" or "operator" under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq.

Appellant, Long Beach Unified School District ("the district"), bought land from the  [*1366]  Dorothy B. Godwin California Living Trust and the Grover Godwin California Trust [**2]  ("the trusts"). Before the sale, this land was leased to the Schafer Bros. Transfer and Piano Moving Company ("Schafer Bros."), which maintained a waste pit on it.

The district knew about this pit before closing the deal because the trusts' site assessment had revealed the contamination, ER 4, and had estimated that decontamination would cost $ 249,000. Id. As a condition of the sale, the district required the trusts to put $ 250,000 in escrow for cleanup. ER 5.

This amount turned out to be not nearly enough. Though it paid for an expert evaluation of the site, nothing was left to even start a cleanup. And so, apparently through its own short-sightedness, the school district was left holding a rather contaminated bag. It responded, as people with toxic waste-ridden property are wont to, by bringing a CERCLA action in federal district court. 2

Happily, the obvious CERCLA defendants - the [**3]  seller and the tenant who polluted the land - both settled, SER 1-2, agreeing to pay a substantial share of the anticipated cleanup costs. See SER 8-10. 3 The case continues against the two remaining defendants, Mobil Oil Corp. and Powerine Oil Co. (collectively "M&P"). Their tie here is not that they helped pollute the property - plaintiff never even alleges this. Rather, each held an easement to run a pipeline across the property and the district says this makes them automatically "owners" or "operators" under 42 U.S.C. § 9607. ER 7.

M&P filed 12(b)(6) motions to dismiss for failure to state a claim, ER 24, 28, which the district court granted. ER 62. We review such decisions de novo, accepting the plaintiff's allegations as true and construing them in the light most favorable to the district. Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1152 (9th Cir. 1989). [**4]  

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32 F.3d 1364 *; 1994 U.S. App. LEXIS 17140 **; 94 Cal. Daily Op. Service 5406; 94 Daily Journal DAR 9891; 39 ERC (BNA) 1065


Prior History:  [**1]  Appeal from the United States District Court for the Central District of California. D.C. No. CV-91-04785-TJH. Terry J. Hatter, District Judge, Presiding.


easement, holder, hazardous, pipeline, cleanup, contamination, pit

Environmental Law, Enforcement, Cost Recovery Actions, Strict Liability, Hazardous Wastes & Toxic Substances, CERCLA & Superfund, General Overview, Energy & Utilities Law, Federal Oil & Gas Leases, Lease Terms, Easements & Rights of Way, Potentially Responsible Parties, Operators & Owners, Pipelines & Transportation, Real Property Law, Encumbrances, Limited Use Rights, Governments, Legislation, Interpretation, Easements, Easement Creation, Express Easements