                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                               July 19, 2017
                                            PUBLISH        Elisabeth A. Shumaker
                                                               Clerk of Court
                        UNITED STATES COURT OF APPEALS

                                     TENTH CIRCUIT



 CHEVRON MINING INC.,

                   Plaintiff - Appellant,
 v.                                                   No. 15-2209
 UNITED STATES OF AMERICA,
 UNITED STATES DEPARTMENT
 OF THE INTERIOR, and UNITED
 STATES DEPARTMENT OF
 AGRICULTURE,

                   Defendants - Appellees.
 ---------------
 AMERICAN EXPLORATION &
 MINING ASSOCIATION,
 COLORADO MINING
 ASSOCIATION, and STATE OF
 MONTANA,

                   Amici Curiae.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF NEW MEXICO
                   (D.C. NO. 1:13-CV-00328-MCA-KK)


Peter D. Keisler, Sidley Austin LLP (Jennifer G. Anderson, Alex C. Walker, and
Jeremy K. Harrison, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque,
New Mexico, R. Timothy McCrum, Kirsten L. Nathanson, and Sherrie A.
Armstrong, Crowell & Moring LLP, Washington, D.C., and Quin M. Sorenson
and Christopher A. Eiswerth, Sidley Austin LLP, Washington, D.C., with him on
the briefs), Washington, D.C., for Appellant.
Katherine J. Barton, Environment & Natural Resources Division, United States
Department of Justice (John C. Cruden, Assistant Attorney General, Simi Bhat,
Justin D. Heminger, Dustin J. Maghamfar, John E. Sullivan, and Evelyn S. Ying,
Environment & Natural Resources Division, United States Department of Justice,
and of Counsel: Joan Marsan, Office of the Solicitor, United States Department of
the Interior, and Kirk Minckler, Office of the General Counsel, United States
Department of Agriculture, with her on the brief), Washington, D.C. for
Appellees.

Gina Cannan and Steven J. Lechner, Mountain States Legal Foundation,
Lakewood, Colorado, on the brief for Amici Curiae American Exploration &
Mining Association and Colorado Mining Association.

Timothy C. Fox, Montana Attorney General, Alan Joscelyn, Chief Deputy
Attorney General, and Dale Schowengerdt, Solicitor General, Office of the
Montana Attorney General, Helena, Montana, on the brief for Amicus Curiae
State of Montana.



Before TYMKOVICH, Chief Judge, BALDOCK, and BRISCOE, Circuit
Judges.


TYMKOVICH, Chief Judge.


      Under the federal environmental laws, the owner of property contaminated

with hazardous substances or a person who arranges for the disposal of hazardous

substances may be strictly liable for subsequent clean-up costs. In this case, the

United States owned national forest lands in New Mexico that were mined over

several generations by Chevron Mining Inc. The question we must resolve is

whether the United States is a “potentially responsible party” (PRP), see, e.g., 42

U.S.C. § 9620(e)(6), for the environmental contamination located on that land.


                                        -2-
      We conclude that under the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 9601–75, the

United States is an “owner,” and, therefore, a PRP, because it is strictly liable for

its equitable portion of the costs necessary to remediate the contamination arising

from mining activity on federal land. We also conclude in this case that the

United States cannot be held liable as an “arranger” of hazardous substance

disposal because it did not own or possess the substances in question.

      Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we therefore reverse

the district court in part and affirm in part, and remand for further proceedings to

determine the United States’s equitable share, if any, 1 of the clean-up costs.

                                 I. Background

      Over the last century, Chevron and its corporate predecessors mined

molybdenum at a site near Questa, New Mexico, which we and the parties refer to

as the “Questa Site.” This extensive mining generated significant amounts of

hazardous substances, ultimately triggering costly clean-up requirements. Both

before and after the Environmental Protection Agency (EPA)’s 2011 decision to

place the Questa Site on the National Priorities List (NPL), see 42 U.S.C.

§ 9605(a)(8), Chevron acknowledged its status as a PRP strictly liable for the



      1
        Because we remand to the district court to address equitable allocation,
see 42 U.S.C. § 9613(f)(1), we take no position on whether a party’s status as a
PRP precludes a determination that its equitable share of response costs is zero.

                                          -3-
hazardous substances contaminating the site. Chevron began remediation

measures 2 pursuant to three administrative orders between it and the EPA. These

measures are ongoing and projected to continue for decades to come, with

anticipated costs exceeding $1 billion. Seeking financial contributions for the

clean-up, Chevron filed suit against the United States asking for a declaration that

the government is also strictly liable as a PRP—both as an “owner” of portions of

the Questa Site and as an “arranger” of hazardous substance disposal, see 42

U.S.C. § 9607(a)—for its equitable share of past, present, and future clean-up

costs. See 42 U.S.C. § 9613(f)(3)(B). 3

      The particular mining and disposal activities relevant to this appeal are

summarized below.




      2
        Whether and what types of costs are necessary and consistent with the
National Contingency Plan (NCP), see 42 U.S.C. § 9605, and the distinctions
between costs incurred as part of “removal actions” and “remedial action[s],” 42
U.S.C. § 9601(23)–(24), is not relevant for purposes of this appeal. We refer
generally to all such clean-up costs incurred or that will be incurred.
      3
         “A person who has resolved its liability to the United States or a [s]tate
for some or all of a response action or for some or all of the costs of such action
in an administrative or judicially approved settlement may seek contribution from
any person who is not party to a settlement . . . .” Id.; see Cooper Indus., Inc. v.
Aviall Servs., Inc., 543 U.S. 157, 162–68 (2004) (discussing distinctions between
CERCLA’s several causes of action). Through the EPA, the United States is a
party to the administrative orders. However, when Chevron settled with the EPA,
the parties contracted to preserve Chevron’s right to pursue these § 9613(f)(3)(B),
post-settlement contribution claims against the United States.

                                          -4-
      A. Mining Activities from 1919–2014

      Molybdenum is a valuable mineral used in the production of military-grade

steel and other materials. Molybdenum mining activities on the Questa mining

lands progressed in three stages: (1) initial underground mining and exploration

from 1919 to 1964; (2) open-pit mining from 1964 to 1983; and (3) renewed

underground mining from 1983 to 2014.

             1. Initial Underground Mining and Exploration (1919–1964)

      In 1919, the R&S Molybdenum Company of Denver opened an

underground mine. The mine covered approximately 400 acres of mostly public

land on which R&S Molybdenum held unpatented mining claims. 4 The

underground mine produced relatively small quantities of molybdenum and

associated waste for several decades before R&S Molybdenum deemed its

reserves exhausted in the 1950s and underground mining operations effectively

ceased.

      Meanwhile, Congress passed the Defense Production Act of 1950 (DPA) to

“ensure the vitality of the domestic industrial base” to supply necessary

“materials and services for the national defense.” 50 U.S.C. § 4502(a)(1). To

      4
          Unpatented mining claims on federal land convey a possessory right to
the claim holder for the extraction and development of underlying mineral
deposits, but the United States retains title to the lands. Patented lands, however,
are owned in title by the claim holder. These lands may include the subsurface
estate, the surface estate, or both. See, e.g., Entek GRB, LLC v. Stull Ranches,
LLC, 763 F.3d 1252, 1253–55 (10th Cir. 2014). The “patent” scheme for mining
claims is discussed in greater detail below.

                                         -5-
facilitate production of such materials, the DPA authorized a new federal agency

within the Department of the Interior, the Defense Mineral Exploration

Administration (DMEA). As part of its efforts to encourage exploration and

development of necessary materials, including molybdenum, the DMEA provided

loans to help finance private companies.

      In 1957, R&S Molybdenum’s successor-in-interest, the Molybdenum

Corporation of America (Molycorp), entered into such a loan agreement with the

DMEA. Molycorp and the DMEA executed an Exploration Project Contract,

under which the federal government agreed to provide a loan covering up to

$255,250 (i.e., half the estimated exploration costs) in exchange for Molycorp’s

agreement to conduct strategic exploratory mining on the Questa mining lands.

Under the contract, all work was subject to government approval. App., Vol. 1, at

100 (“The location, direction, inclination, extent, and methods of sampling the

work under the contract are subject to Government approval.”). Molycorp also

agreed to repay the loan in the form of production royalties, provide monthly

progress reports, and consult with and inform the government on all phases of the

work as it progressed. At this point, Molycorp held twenty-one mining claims

near Questa, all but two of which were unpatented.

      Pursuant to the DMEA exploration contract, Molycorp conducted extensive

exploration from 1957 to 1960 and eventually discovered a molybdenum ore




                                           -6-
deposit estimated to be 260 million tons in size. The Department of the Interior

certified the discovery in 1960 and Molycorp began mining preparations.

            2. Open-Pit Mining (1964–1983)

      In 1964, Molycorp opened an open-pit mine to extract molybdenum from

the ore deposit. The mine was a success and, at full capacity, produced more than

four million tons of molybdenum annually (while simultaneously generating

significant amounts of waste). By 1966, Molycorp fully repaid the government’s

loan under the DMEA contract via royalties from mineral production and sales.

Molycorp expanded its mining activities to adjacent lands (not covered by the

initial federal contract) on which it held mostly unpatented mining claims.

            3. Renewed Underground Mining (1983–2014)

      In 1983, Molycorp ceased open-pit mining operations and opened a new

underground mine. Union Oil Company of California acquired the mine and, in

2005, Chevron acquired Union Oil. After several years with little or no mineral

production, Chevron closed the underground mine in 2014.

      B. Waste and Associated Disposal

      The mining activities produced corresponding amounts of waste containing

hazardous substances, now subject to CERCLA remediation. Approximately 150

thousand tons of waste rock were generated from the early underground mining




                                        -7-
operations, 328 million tons of waste rock and 75 million tons of “tailings” 5 from

the open-pit mining, and 25 million tons of tailings from the renewed

underground mining.

      The substantial amount of waste generated by these mining activities was

not unexpected. When Molycorp first discovered the molybdenum ore deposit in

1960, for example, government engineers produced a “Final Geological and

Engineering Report” estimating over 99% of the material extracted from the 260

million ton ore deposit would need to be discarded as waste. See App., Vol. 3, at

681–84. Nonetheless, the federal government actively encouraged—and, indeed,

funded—Molycorp’s mining activities at this site.

      Hazardous substance disposal from the mines can be divided into two

categories: (1) waste rock disposal; and (2) mine tailings disposal.

              1. Waste Rock Disposal

      Chevron and its corporate predecessors disposed of over 328 million tons

of waste rock on land surrounding the open-pit mine. Although Molycorp

initially held only unpatented mining claims on the these lands, it eventually

acquired fee title to 2,258 acres of national forest land around the perimeter of its

open-pit mine (referred to as “the selected lands”) from the United States. 6 In

      5
         Mine tailings are fine grains of mining rock and water generated during
the milling process as molybdenum is separated from the mined ore.
      6
          The parties dispute whether Molycorp could have patented its claims on
                                                                     (continued...)

                                         -8-
exchange for the selected lands, Molycorp traded to the United States

approximately 246 acres of private land usable for public recreation, hunting, or

other forest purposes. This land exchange was finalized in 1974.

              2. Mine Tailings Disposal

      Chevron and its corporate predecessors also disposed of over 100 million

tons of mine tailings by transporting the tailings via pipelines to one of two

different “tailings ponds” 7 approximately nine miles away from the open-pit mine.

Of the two tailings ponds, the first was located on approximately 627 acres of

land acquired from the Bureau of Land Management (BLM) in 1966. The second

pond was located on 439 acres of land acquired from the State of New Mexico in

1968. Between 1965 and 1973, Molycorp sought and received several “special

use” land authorization permits from the Forest Service for multiple tailings

pipelines, which crossed over 4.27 miles of national forest lands to reach the two

tailings ponds.



      6
        (...continued)
the selected lands. Chevron contends the selected lands were nonmineral in
character and thus unpatentable, while the government suggests Molycorp could
have patented the claims. Resolution of this dispute is ultimately irrelevant,
however, because regardless of whether Molycorp could have acquired title by
patenting the claims, it is undisputed that Molycorp in fact acquired title through
the land exchange. As we explain, this land exchange highlights both the
government’s ownership (and active exercise of such) over relevant portions of
the Questa mining lands during the time of hazardous substance disposal and also
evinces the government’s assistance in arranging such disposal.
      7
          Tailings ponds are confined areas to hold mine tailings.

                                          -9-
                                  II. Analysis

      Chevron seeks recognition of the United States as a PRP, both as an

“owner” and “arranger,” liable for its equitable portion of costs to remediate the

hazardous substances located at the Questa Site. These are questions of law that

we review de novo in light of the factual record presented in the parties’ cross-

motions for summary judgment, a record which is not in dispute and our review

of which is also de novo. See Universal Underwriters Ins. Co. v. Winton, 818

F.3d 1103, 1105 (10th Cir. 2016); Fed. R. Civ. P. 56(a). For the reasons set forth

below, we conclude the United States is a PRP as an owner, but not as an

arranger.

      We start with the relevant statutory background.

      A. Statutory Background: CERCLA and the General Mining Act of 1872

             1. CERCLA

      CERCLA was designed “to promote the ‘timely cleanup of hazardous waste

sites’ and to ensure that the costs of such cleanup efforts were borne by those

responsible for the contamination.” Burlington N. & Santa Fe Ry. v. United

States, 556 U.S. 599, 602 (2009) (citation omitted). “The remedy that Congress

felt it needed in CERCLA is sweeping: everyone who is potentially responsible

for hazardous-waste contamination may be forced to contribute to the costs of

cleanup.” United States v. Bestfoods, 524 U.S. 51, 56 n.1 (1998) (citation

omitted). “[B]ecause CERCLA is remedial legislation, it should be construed

                                        -10-
liberally to carry out its purpose.” Atl. Richfield Co. v. Am. Airlines, Inc., 98 F.3d

564, 570 (10th Cir. 1996).

      Proving that a defendant is liable in a contribution action under

§ 9613(f)(3)(B) “is dependent on the establishment of a prima facie case of

liability under [§ 9607(a)].” Morrison Enters. v. McShares, Inc., 302 F.3d 1127,

1132 (10th Cir. 2002) (alteration in original) (citation omitted). To do so, “a

plaintiff must prove [that] (1) the site is a facility, (2) [the] defendant is a [PRP],

(3) the release or threatened release of a hazardous substance has occurred, and

(4) the release or threatened release caused the plaintiff to incur necessary

response costs consistent with the” NCP. Young v. United States, 394 F.3d 858,

862 (10th Cir. 2005); see Morrison, 302 F.3d at 1135–36 (similarly identifying

these elements, but recognizing that the fourth is comprised of three sub-

elements). It is undisputed that the Questa Site has released or threatened to

release hazardous substances, and that Chevron has incurred necessary response

costs consistent with the NCP, pursuant to the administrative orders between

Chevron and the EPA. In this case, therefore, only the definition of the relevant

facility and the United States’s status as a PRP as regards that facility bear on

whether it is liable to contribute an equitably allocated amount toward Chevron’s

incurred and future response costs. We first address the relevant facility and then

devote the balance of our analysis to whether the United States is a PRP.

      CERCLA authorizes the President to designate certain facilities for

                                          -11-
remediation by placement on the NPL. 42 U.S.C. § 9605. And CERCLA defines

“facility” broadly to include not only “any building, structure, installation,

equipment, pipe or pipeline . . . , well, pit, pond, lagoon, impoundment, ditch,

landfill, storage container, motor vehicle, rolling stock, or aircraft,” but also “any

site or area where a hazardous substance has been deposited, stored, disposed of,

or placed, or otherwise come to be located.” 42 U.S.C. § 9601(9).

      Under this “broad and detailed definition,” Bestfoods, 524 U.S. at 56,

moreover, for purposes of establishing liability (as opposed to equitable

allocation), a person is liable if that person meets CERCLA’s definition of a PRP

with respect to even a “portion of the total facility.” See Burlington N. & Santa

Fe Ry., 556 U.S. at 618. In assessing whether the United States is liable here,

therefore, we treat the entire EPA-delineated Questa Site as a single facility, even

though it also might be conceptualized as numerous distinct parcels of land, sites,

or areas, and the contaminated natural formations and objects on or in them. See

42 U.S.C. § 9601(9). The Questa Site includes “the mine and waste rock disposal

area,” “the tailings disposal area,” App., Vol. 4, at 908, “as well as all other areas

where any hazardous substance, pollutant, or contaminant from [Chevron’s]

mining, milling, and tailings disposal operations has come to be located.” App.,

Vol. 2, at 249. The Questa Site thus encompasses all of the surface estates that

are central to the dispute over whether the United States was an owner of the site.

      Turning to whether the United States is a PRP, and regardless of whether a

                                          -12-
facility lands on the NPL, CERCLA holds “covered persons”—i.e., persons 8 liable

for a release or threatened release of hazardous substances from the

facility—strictly liable for remedial action and other necessary response costs. 42

U.S.C. § 9607(a)(4). There are four types of covered persons: (1) owners; (2)

operators; (3) arrangers; and (4) transporters. 42 U.S.C. § 9607(a). These

categories of covered persons, the “potentially responsible parties,” are broad.

See United States v. Atl. Research Corp., 551 U.S. 128, 134 & n.2 (2007)

(“CERCLA § 107(a) lists four broad categories of persons as PRPs, by definition

liable to other persons for various costs.”); Pub. Serv. Co. of Colo. v. Gates

Rubber Co., 175 F.3d 1177, 1181 & n.6 (10th Cir. 1999) (“The categories of PRPs

broadly include current and former owners and operators of a facility or vessel

involved in hazardous substance disposal and persons who arranged for or

accepted hazardous substances for disposal or transportation.”). Only the first

and third categories of covered persons—owners and arrangers—are at issue in

this appeal. Each is discussed in greater length below.

      “CERCLA liability may be inferred from the totality of the circumstances;

it need not be proven by direct evidence.” Tosco Corp. v. Koch Indus., Inc., 216




      8
         The term “person” includes “an individual, firm, corporation, association,
partnership, consortium, joint venture, commercial entity, United States
Government, [s]tate, municipality, commission, political subdivision of a [s]tate,
or any interstate body.” 42 U.S.C. § 9601(21).

                                        -13-
F.3d 886, 892 (10th Cir. 2000). This is particularly true for cases involving older

hazardous substance disposal, “as eyewitness testimony or other direct evidence

concerning specific waste disposal practices . . . during the 1940s—well before

the enactment of environmental laws—is rarely available.” Id. “[C]ircumstantial

evidence showing disposals of hazardous waste occurred at the [facility] during [a

party]’s ownership or operation” of that facility is sufficient, if credited by the

factfinder, to trigger liability. Id. Such otherwise-covered persons may avoid

liability only if they qualify for one of CERCLA’s enumerated defenses, e.g.,

those set forth in 42 U.S.C. § 9607(b), none of which is asserted here. Moreover,

again, the factual record is not in dispute, allowing us to definitively resolve

whether the United States is a PRP as a matter of law.

      Finally, under the contribution provision of CERCLA at issue here,

§ 9613(f)(3)(B), all PRPs are jointly liable, and the court “may allocate response

costs among liable parties using such equitable factors as the court determines are

appropriate.” 42 U.S.C. § 9613(f)(1); see Burlington N. & Santa Fe Ry., 556 U.S.

at 613–15 (discussing CERCLA’s various costs-shifting frameworks). CERCLA

subjects the United States to this statutory scheme “in the same manner and to the

same extent, both procedurally and substantively, as any nongovernmental entity,

including liability under section 9607. . . .” 42 U.S.C. § 9620(a)(1); see, e.g., 42

U.S.C. § 9620(e)(6) (permitting the EPA to settle with another PRP to remediate a

“Federal facility,” giving rise to a contribution claim against the United States).

                                          -14-
             2. The General Mining Act of 1872

      Chevron’s claims arose from its right to exploit mineral deposits under the

public lands of the United States. Under the General Mining Act of 1872, “all

valuable mineral deposits in lands belonging to the United States, both surveyed

and unsurveyed, shall be free and open to exploration and purchase, and the lands

in which they are found to occupation and purchase, by citizens of the United

States.” 30 U.S.C. § 22. In essence, the Act “provides that citizens may enter

and explore the public domain, and search for minerals; if they discover ‘valuable

mineral deposits,’ they may obtain title to the land on which such deposits are

located.” Andrus v. Shell Oil Co., 446 U.S. 657, 658 (1980).

      Locators of mining claims, “so long as they comply with the laws of the

United States, and with [s]tate, territorial, and local regulations . . . , shall have

the exclusive right of possession and enjoyment of all the surface included within

the lines of their locations.” 30 U.S.C. § 26.

      A mining claim is a parcel of land containing precious metal in its soil
      or rock. A location is the act of appropriating such parcel, according
      to certain established rules. It usually consists in placing on the
      ground, in a conspicuous position, a notice setting forth the name of the
      locator, the fact that it is taken or located, with the requisite description
      of the extent and boundaries of the parcel, according to the local
      customs, or, since the statute of 1872, according to the provisions of
      that act.

Smelting Co. v. Kemp, 104 U.S. 636, 649 (1881). Under the General Mining Act

of 1872, citizens may take steps to “locate” their mining claims by, at a minimum:


                                          -15-
(1) distinctly marking the location on the ground so that its boundaries can be

readily traced; (2) recording and submitting the name or names of the locators,

the date of the location, and such a description of the claim or claims located by

reference to some natural object or permanent monument as will identify the

claim; and (3) maintaining the claim by annually performing at least $100 worth

of labor or improvements, or paying a claim maintenance fee. See 30 U.S.C.

§§ 28, 28f.

      Citizens may also seek to convert their general, “unpatented” mining claims

into “patented” claims by following the process set forth in 30 U.S.C. § 29. The

holder of an unpatented claim has superior rights as against third parties but not

as against the United States, which retains paramount title. See United States v.

Etcheverry, 230 F.2d 193, 195 (10th Cir. 1956) (“[T]he mere location of a mining

claim gives to the locator only the right to explore for and mine minerals, and to

purchase the land if there has been a compliance with the provisions of the

statute. As against third parties, the locator or his assigns have exclusive right to

use the surface of this land, but as against the United States, his right is

conditional and inchoate.” (citing Shiver v. United States, 159 U.S. 491 (1895))).

Issuance of a patent transfers title in the underlying public land from the United

States to the patent holder. See, e.g., Iron Silver Mining Co. v. Campbell, 135

U.S. 286, 301 (1890) (“[W]hen the government has issued and delivered its patent

for lands of the United States, the control of the department over the title to such

                                          -16-
land has ceased.”); Smelting Co., 104 U.S. at 640–41 (1881) (“The execution and

record of the patent are the final acts of the officers of the government for the

transfer of its title, and as they can be lawfully performed only after certain steps

have been taken, that instrument . . . not merely operates to pass the title, but is in

the nature of an official declaration by that branch of government to which the

alienation of the public lands, under the law, is intrusted, that all the requirements

preliminary to its issue have been complied with.”).

       Nonmineral lands, however, may only be patented if the property is less

than five acres and is included in a patent application for land with valuable

minerals (subject to the same survey and notice requirements set forth in 30

U.S.C. § 29). See 30 U.S.C. § 42.

       Given the legal background, this case requires us to harmonize liability

provisions under CERCLA with the rights created by the General Mining Act of

1872 to determine whether the United States is a PRP and therefore required to

equitably contribute toward cleaning up hazardous substances from mining

operations on or under such land. We address owner liability first, and then turn

to arranger liability.

       B. “Owner” Liability

       Chevron seeks recognition of the United States as an “owner” strictly liable

for hazardous substances on the Questa mining lands. As we explain, we agree




                                          -17-
that the United States qualifies as a PRP because it owned portions of the land

comprising the Questa Site. See Burlington N. & Santa Fe Ry., 556 U.S. at 618.

      Owner liability attaches to “any person owning” the contaminated facility.

See 42 U.S.C. § 9601(20)(A); Bestfoods, 524 U.S. at 68 (explaining that the PRP

inquiry “rests on the relationship between” the defendant and the “facility itself”);

Morrison, 302 F.3d at 1133 (“Because liability is strict,” a plaintiff “need not

show that the defendant caused the release of hazardous wastes that required

response actions.”). Both current and past owners are subject to owner

liability—it reaches “any person who at the time of disposal of any hazardous

substance owned . . . any facility at which such hazardous substances were

disposed of[.]” 42 U.S.C. § 9607(a).

      The ordinary or natural meaning of “owner” includes, at a minimum, a

legal title holder. See Own, Black’s Law Dictionary (10th ed. 2014) (“To

rightfully have or possess as property; to have legal title to.”); Owner, Black’s

Law Dictionary (10th ed. 2014) (“Someone who has the right to possess, use, and

convey something; a person in whom one or more interests are vested. An owner

may have complete property in the thing or may have parted with some interests

in it (as by granting an easement or making a lease).”).

      Dictionaries published around the time of CERCLA’s enactment in 1980

affirm this natural meaning. See Ownership, American Heritage Dictionary (2d.

ed. 1982) (“The state or fact of being an owner. . . . Legal right to the possession

                                        -18-
of a thing.”); Owner, Oxford American Dictionary (1st ed. 1980) (“[A] person

who owns something as his property.”); Own, Black’s Law Dictionary (5th ed.

1979) (“To have good legal title; to hold as property; to have a legal or rightful

title to; to have; to possess.”); Owner, Black’s Law Dictionary (5th ed. 1979)

(“The person in whom is vested the ownership, dominion, or title of property;

proprietor. He who has dominion of a thing, . . . which he has a right to enjoy

and do with as he pleases, even to spoil or destroy it, as far as the law permits,

unless he be prevented by some agreement or covenant which restraints his

right. . . . The primary meaning of the word as applied to land is one who owns

the fee and who has the right to dispose of the property, but the term also includes

one having a possessory right to land or the person occupying or cultivating it.”).

For purposes of CERCLA, then, an owner includes the legal title holder of

contaminated land. 9 This broad liability is limited by only a handful of

enumerated exceptions, which, again, the United States does not assert here. 10

      9
         As the government points out, the statutory language is circular, in effect,
a “tautology,” because it defines an owner as an owner. See Bestfoods, 524 U.S.
at 56. That may be true but as we discuss below, in context, the language still
yields its ordinary meaning—an owner includes the title holder. To the extent a
statutory definition is, by itself, circular or “useless[ ],” we are left “to do the best
we can to give the term its ‘ordinary or natural meaning.’” See id. at 66.
      10
          See, e.g., 42 U.S.C. §§ 9601(20)(A) (person holding indicia of
ownership primarily to protect his security interest), 9601(20)(D) (a unit of state
or local government that acquired ownership or control involuntarily by virtue of
its function as sovereign—e.g., through bankruptcy, tax delinquency, or
abandonment), 9601(20)(E)(i) (lender holding indicia of ownership primarily to
                                                                      (continued...)

                                          -19-
      If the statutory term were not clear enough, the Supreme Court has

admonished that “the law of CERCLA liability” incorporates “traditional

standards and expectations,” that a “CERCLA-specific rule of . . . liability . . .

does not arise from congressional silence,” and, rather, that “CERCLA’s silence

is dispositive.” Bestfoods, 524 U.S. at 70. “It is ‘a cardinal principle of statutory

construction’ that ‘a statute ought, upon the whole, to be so construed that, if it

can be prevented, no clause, sentence, or word shall be superfluous, void, or

insignificant.’” TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (citation omitted).

Under this “rudimentary canon of statutory construction that [ ] superfluities are

to be avoided,” Lockheed Martin Corp. v. Admin. Review Bd., 717 F.3d 1121,

1130 (10th Cir. 2013), we turn to contextual clues about the meaning of the term

“owner.” Other CERCLA provisions shed light on this inquiry. For example,

among minimum standards for responding to a hazardous substance release,

CERCLA requires “a method for and assignment of responsibility for reporting

the existence of such facilities which may be located on federally owned or

controlled properties and any releases of hazardous substances from such

facilities.” 42 U.S.C. § 9605(a)(6) (emphasis added).



      10
        (...continued)
protect his security interest), 9601(20)(E)(ii) (lender that did not participate in
management prior to foreclosure), 9607 (owners of contiguous real property who
establish certain conditions by a preponderance of the evidence), 9624 (owners of
equipment unless they caused the release or are otherwise liable).

                                         -20-
      The distinction between federally owned and federally controlled properties

indicates that ownership and control are independent inquiries—the United States

may own a facility without controlling that facility. Cf. 42 U.S.C. § 9620(a)(1)

(“[T]he United States . . . shall be subject to, and comply with, this chapter in the

same manner and to the same extent, both procedurally and substantively, as any

nongovernmental entity, including liability under section 9607 of this title.”).

CERCLA also provides, at the request of a state, that the President “generally

shall defer” final listing of an eligible site on the NPL if the President determines

certain conditions have been satisfied. See 42 U.S.C. § 9605(h)(1). But the

President “may decline to defer, or elect to discontinue a deferral” if the President

determines “deferral would not be appropriate because the [s]tate, as an owner or

operator or a significant contributor of hazardous substances to the facility, is a

potentially responsible party.” 42 U.S.C. § 9605(h)(4)(A) (emphasis added).

      Differentiating among owners, operators, and significant contributors

demonstrates that a person may be considered an owner for purposes of CERCLA

liability, see Bestfoods, 524 U.S. at 56 n.1, without having contributed in any way

to the hazardous substances. See Atl. Research Corp., 551 U.S. at 136

(“[CERCLA] defines PRPs so broadly as to sweep in virtually all persons likely

to incur cleanup costs. . . . [E]ven parties not responsible for contamination may

fall within the broad definitions of PRPs in [§ 9607(a)].”). Likewise, CERCLA

contains provisions for expedited final settlement with PRPs in certain

                                         -21-
circumstances. See 42 U.S.C. § 9622(g)(1). Expedited final settlement may be

appropriate when the PRP “(i) is the owner of the real property on or in which the

facility is located; (ii) did not conduct or permit the generation, transportation,

storage, treatment, or disposal of any hazardous substance at the facility; and (3)

did not contribute to the release or threat of release of a hazardous substance at

the facility through any action or omission.” 42 U.S.C. § 9622(g)(1)(B)

(emphasis added). These three, distinct, enumerated requirements indicate that

they are separate—i.e., an owner of real property on or in which the facility is

located does not have to have conducted, permitted, or contributed to the

production of hazardous substances in order to be considered an owner for

purposes of CERCLA liability. Interpreting these provisions to mean otherwise

would render portions of the statute superfluous, void, or insignificant.

      It is undisputed that the United States held legal title to relevant portions of

the Questa mining lands at the time of significant hazardous substance disposal.

See, e.g., App., Vol. 2, at 422 (“Prior to approving the 1974 Land Exchange,

United States employees knew that [Chevron] had disposed of waste rock on the

Selected Lands covered by [Chevron’s] unpatented mining claims . . . .”).

Nevertheless, the government argues “bare legal title” is insufficient to trigger

owner liability. Instead, it contends the unique nature of unpatented mining

claims on federal lands requires an exception to CERCLA’s ownership liability

provision. But see 42 U.S.C. § 9620(a)(1) (holding “the United States” liable “to

                                         -22-
the same extent, both procedurally and substantively, as any nongovernmental

entity, including” as regards “liability under” 42 U.S.C. § 9607(a)(2)’s “owner or

operator” provision).

      Although CERLCA contains neither an expressed nor an implied exception

to owner liability for holders of “bare legal title,” the government urges us to

adopt such an exception based on United States v. Friedland, 152 F. Supp. 2d

1234 (D. Colo. 2001). In Friedland, the district court held the United States, as

“bare legal title holder to unpatented mining claims,” did not qualify as an

“owner” for purposes of CERCLA liability. See 152 F. Supp. 2d at 1242–46. In

reaching this conclusion, however, Friedland found that, because CERCLA

defines owner “tautologically . . . as ‘any person . . . owning a facility,’”

“CERCLA’s text [ ] offers virtually no guidance in interpreting the extent of

owner liability.” Id. at 1242 (quoting 42 U.S.C. § 9601(20)(A)). And Friedland

agreed with the Second Circuit’s finding in Commander Oil that “the term

‘owner’ has no natural meaning” and “limited inherent content.” See Friedland,

152 F. Supp. 2d at 1242 (citing Commander Oil Corp. v. Barlo Equip. Corp., 215

F.3d 321, 327–28 (2d Cir. 2001)). To fill this void, the district court adopted an

“indicia of ownership” analysis which required examining “the relationship

between the United States, as owner of bare legal title of the unpatented mining

claim/property, and those entities utilizing the property subject to the unpatented

mining claim,” to discern “whether the United States possessed indicia of

                                          -23-
ownership sufficient to merit the appellation ‘owner’ for purposes of CERCLA.”

Id. at 1244. Conducting this analysis, Friedland found “the United States [was]

not an ‘owner’ in the fullest sense of the term,” so it was “inappropriate to deem

the United States an ‘owner’ for purposes of CERCLA liability.” Id. at 1246.

      The government urges us to adopt Friedland’s indicia of ownership test.

But we find it neither persuasive in principle nor in application. First, as we

explained above, this analysis has no basis in the statute. In fact, CERCLA’s

statutory context, which supports broad application of owner liability subject only

to certain, specifically enumerated exceptions belies a supra-statutory gloss.

Moreover, Congress included the phrase “indicia of ownership” when crafting

some of its few exceptions to broad owner liability. See, e.g., 42 U.S.C.

§§ 9601(20)(A) (person holding indicia of ownership primarily to protect his

security interest), 9601(20)(E)(i) (lender holding indicia of ownership primarily

to protect his security interest). If Congress sought to require indicia of

ownership by all would-be “owners,” it could have done so. The indicia of

ownership test also runs perilously close to collapsing the “owner” and “operator”

categories by requiring owners to exercise some threshold level of indicia of

ownership beyond their rights as title holder. See Atl. Research, 551 U.S. at 136

(noting that even “‘innocent private parties,” e.g., “a landowner whose land has

been contaminated by another,” are within the ambit of this “strict liability

statute” (absent a statutorily-enumerated defense), because “even parties not

                                         -24-
responsible for contamination may fall within the broad definitions of PRPs”

(citation omitted)).

      Second, at least some of Friedland’s reasoning conflicts with, and is thus

undermined by, binding Supreme Court precedent. While Friedland contends

“the United States is not allowed to exclude individuals from [land subject to

unpatented mining claims] and may only regulate mining activities in the national

forests in order to protect surface resources,” see 152 F. Supp. 2d at 1246, the

Supreme Court has repeatedly emphasized Congress’s broad, plenary Property

Clause 11 powers over national forest land, including lands subject to unpatented

mining claims. See, e.g., Cal. Coastal Comm’n v. Granite Rock Co., 480 U.S.

572, 581 (1987) (“[T]he Property Clause gives Congress plenary power to

legislate the use of the federal land on which [a mining company] holds its

unpatented mining claim.”). 12 Even if it is true, as the government argues, that

      11
         U.S. Const. art. IV, § 3, cl. 2 (“The Congress shall have Power to
dispose of and make all needful Rules and Regulations respecting the Territory or
other Property belonging to the United States . . . .”).
      12
          See also, e.g., United States v. Locke, 471 U.S. 84, 104 (1985)
(“Although owners of unpatented mining claims hold fully recognized possessory
interests in their claims, we have recognized that these interests are a ‘unique
form of property.’ The United States, as owner of the underlying fee title to the
public domain, maintains broad powers over the terms and conditions upon which
the public lands can be used, leased, and acquired. . . . Claimants thus must take
their interests with the knowledge that the Government retains substantial
regulatory power over those interests.” (citation omitted)); Best v. Humboldt
Placer Mining Co., 371 U.S. 334, 336 (1963) (“Respondents’ mining claims are
unpatented, the title to the lands in controversy still being in the United
                                                                         (continued...)

                                         -25-
Chevron and its corporate predecessors “had exclusive use and possession of the

[Questa mining lands] for mining purposes, without any interference or control by

the United States,” Aple. Br. at 21, the government’s choice not to exercise its

Property Clause powers does not invalidate their existence. There is no dispute

that the United States held fee title to relevant portions of the Questa mining

lands during the time of hazardous substance disposal, part of the area that today

comprises the Questa Site. We do not doubt that it could have exercised greater

powers, regulatory or otherwise, over the lands if it wanted to do so. 13



      12
         (...continued)
States. . . . [T]he Department has been granted plenary authority over the
administration of public lands, including mineral lands; and it has been given
broad authority to issue regulations concerning them.”); Belk v. Meagher, 104
U.S. 279, 283–84 (1881) (“Congress has seen fit to make the possession of that
part of the public lands which is valuable for minerals separable from the fee, and
to provide for the existence of an exclusive right to the possession, while the
paramount title to the land remains in the United States. . . . The right of location
upon the mineral lands of the United States is a privilege granted by Congress,
but it can only be exercised within the limits prescribed by the grant.”).
      13
          Under the Property Clause, Congress always retains—at least over the
“lands of the United States”—the powers “to control their occupancy and use, to
protect them from trespass and injury, and to prescribe the conditions upon which
others may obtain rights in them.” Utah Power & Light Co. v. United States, 243
U.S. 389, 405 (1917). This “power over the public land . . . entrusted to Congress
is without limitations.” Alabama v. Texas, 347 U.S. 272, 273 (1954); see also
United States v. Bd. of Cty. Comm’rs of Cty. of Otero, 843 F.3d 1208, 1212 (10th
Cir. 2016) (“[T]he Property Clause gives the federal government plenary power,
including legislative and police power, over federal property.”). And, as we have
explained, the Supreme Court has made clear that while holders of unpatented
mining claims have substantial property interests in their claims, Congress’s
broad, plenary Property Clause powers continue to reach the underlying federal
land.

                                         -26-
      Finally, we find the government’s argument undermines the understanding

of what a CERCLA “facility” is. CERCLA defines “facility” to broadly include

“any site or area” (i.e., land) “where a hazardous substance has been deposited,

stored, disposed of, or placed, or otherwise come to be located.” 42 U.S.C.

§ 9601(9). Its statutory coverage is expressly not limited to a “facility” in the

more traditional, narrow sense—e.g., “any building, structure, installation,

equipment, pipe or pipeline . . . , well, pit, pond, lagoon, impoundment, ditch,

landfill, storage container, motor vehicle, rolling stock, or aircraft.” Id. An

owner of any land contaminated with hazardous substances thus qualifies as an

owner of a “facility,” even if that person does not own any of the mining

equipment or structures. In contrast to this clear statutory command, the

government asks us to define “the facility” solely “with respect to Chevron’s

mining activities,” and not with respect to the land, such that “any non-mining use

rights held by the United States within the boundaries of Chevron’s mining claims

are not part of the ‘bundle of sticks’ that is material to determining whether the

United States is an ‘owner’ of the Questa Mine ‘facility.’” Aple. Br. at 42.

      We conclude that, at a minimum, the term “owner” covers fee title holders

for purposes of CERCLA liability, irrespective of any additional indicia of

ownership. To find otherwise would be inconsistent with CERCLA’s statutory

scheme and an ordinary application of its terms. Of course, a “bare legal title”

holder may in fact be liable for only a small, or perhaps no, share of remediation

                                         -27-
costs as a matter of equity. But a liberal construction of CERCLA’s liability

scheme requires any consideration of the extent and kind of an owner’s

involvement in hazardous substance production and disposal be made at the

second stage of the CERCLA liability inquiry (i.e., allocation under 42 U.S.C.

§ 9613(f)(1)), rather than the first (i.e., precluding “owner” liability entirely).

This position is consistent with Supreme Court precedent and case law from other

circuits. 14 See Atl. Research, 551 U.S. at 136 (explaining that “even parties not

responsible for contamination may fall within the broad definition of PRPs,” e.g.,

owners).




      14
           For example, the Fourth Circuit has addressed, and rejected, the
argument that a person who merely “held legal title to the property for only a
short period of time” was not an “owner” for purposes of CERCLA liability. See
Nurad, Inc. v. William E. Hooper & Sons Co., 966 F.2d 837, 844 (4th Cir. 1992).
In holding the short-term title holder liable as an owner, the court noted that “the
word ‘owned’ is [not] a word that admits of varying degrees. Such equitable
considerations as the duration of ownership may well be relevant at a later stage
of the proceedings when the district court allocates response costs among liable
parties, but we reject any suggestion that a short-term owner is somehow not an
owner for purposes of § 9607(a)(2).” Id. (citation omitted); see also, e.g., Los
Angeles v. San Pedro Boat Works, 635 F.3d 440, 444, 448–52 (9th Cir. 2011)
(acknowledging “Congress’s intent to hold liable the passive fee title owner of
real property,” declining to apply Commander Oil’s “nebulous and flexible”
framework, and, in holding owner liability improper as applied to holders of
revocable permits for specific use of real property, contrasting the status of
persons holding “less-than fee-title possessory interests in real property, conveyed
by the holder of fee title” with persons holding “absolute title ownership to real
property” (i.e., quintessential “owners”) (emphasis added)); Canadyne-Ga. Corp.
v. NationsBank, N.A. (S.), 183 F.3d 1268, 1273–74 (11th Cir. 1999) (finding
“legal title” sufficient to trigger owner liability).

                                          -28-
      In any event, the government engaged in much more than mere passive

ownership here. The United States actively exercised its ownership when, for

example, it sold portions of its land, including the 2,258 acres of land for waste

rock disposal around the perimeter of the open-pit mine and the 627 acres of land

for use as a tailings pond, to Molycorp in exchange for valuable consideration.

Alienability is a key tenant of ownership—it is a “fundamental maxim of property

law that the owner of a property interest may dispose of all or part of that interest

as he sees fit.” Phillips v. Wash. Legal Found., 524 U.S. 156, 167 (1998).

      In addition, the government actively encouraged mining activities on its

lands when it passed the DPA and provided the initial loan to Molycorp,

Chevron’s corporate predecessor, to fund their molybdenum exploration and

mining. For decades after that, the United States knew that Chevron was

depositing millions of tons of waste rock and tailings on the surface estates, land

over which the United States still held, at minimum, ownership via legal title.

Regardless of whether contracting out mining activities might, or might not,

shield a party from operator liability, it cannot shield a landowner—here, the

legal titleholder—from owner liability (although it might reduce the party’s

equitable share at the allocation stage). And the government repeatedly exercised

its plenary regulatory authority over the lands when it approved several special

use permits for Molycorp’s tailings pipelines. These actions all indicate the

government’s continued oversight and involvement in operations on the Questa

                                         -29-
mining lands that produced substantial amounts of hazardous substances. Though

such efforts are not at all required for ownership liability, see, e.g., Atl. Research,

551 U.S. at 136, that the United States undertook them here buttresses our

conclusion that it was an owner.

      Accordingly, we conclude the United States was an owner of portions of

the Questa Site during the relevant period when hazardous substances came to be

located there. As a matter of law, therefore, the United States is a PRP with

respect to the Questa Site and is strictly liable to contribute its equitably allocated

share of Chevron’s response costs, pursuant to § 9613(f)(3)(B).

      C. “Arranger” Liability

      In addition to liability as an “owner” of contaminated property, Chevron

asks us to find the United States liable as an “arranger” of hazardous substance

disposal at the Questa Site. Though we have already determined the United

States qualifies as an owner and is therefore a PRP, we must address this separate

theory of recovery under § 9613(f)(3)(B) because it may affect the determination

of the United State’s equitable allocation of the response costs. As we explain,

however, we conclude that the United States is not liable as an arranger under

CERCLA because it neither owned nor possessed the hazardous substances

disposed of.

      Arranger liability under CERCLA attaches to,




                                          -30-
         any person who by contract, agreement, or otherwise arranged for
         disposal or treatment, or arranged with a transporter for transport for
         disposal or treatment, of hazardous substances owned or possessed by
         such person, by any other party or entity, at any facility or incineration
         vessel owned or operated by another party or entity and containing such
         hazardous substances.

42 U.S.C. § 9607(a)(3). In other words, to be held liable under CERCLA as an

arranger, we require a party to satisfy three conditions: (1) the party must be a

“person” as defined in CERCLA; (2) the party must “own” or “possess” the

hazardous substance prior to the disposal; and (3) the party must, “by contract,

agreement or otherwise,” arrange for the transport or disposal of such hazardous

substances. Raytheon Constructors, Inc. v. Asarco Inc., 368 F.3d 1214, 1219

(10th Cir. 2003). Because the United States at best satisfies only two of these

three conditions—the first and the third—we hold that arranger liability does not

apply.

         To begin with, the United States is a “person” as defined in CERCLA, thus

satisfying the first condition. See 42 U.S.C. § 9601(21) (“The term ‘person’

means . . . United States Government . . . .”); 42 U.S.C. § 9620(a)(1) (“Each

department, agency, and instrumentality of the United States (including the

executive, legislative, and judicial branches of government) shall be subject to,

and comply with, this chapter in the same manner and to the same extent, both

procedurally and substantively, as any nongovernmental entity, including liability

under section 9607 of this title.”).


                                           -31-
      As to the third condition, it is true that the United States helped arrange for

the transport or disposal of waste rock and tailings at the Questa Site. And it is

undisputed those materials contained or were themselves hazardous substances

within the meaning of CERCLA. See 42 U.S.C. § 9601(14). But as the Supreme

Court has explained, not all involvement in the disposal process triggers arranger

liability. While it is “plain from the language of the statute that CERCLA

liability would attach under § 9607(a)(3) if an entity were to enter into a

transaction for the sole purpose of discarding a used and no longer useful

hazardous substance,” it is equally clear that, at the other extreme, “an entity

could not be held liable as an arranger merely for selling a new and useful

product if the purchaser of that product later, and unbeknownst to the seller,

disposed of the product in a way that led to contamination.” Burlington N. &

Santa Fe Ry., 556 U.S. at 609–10. “Less clear is the liability attaching to the

many permutations of ‘arrangements’ that fall between these two extremes.” Id.

at 610.

      In such cases, “whether an entity is an arranger requires a fact-intensive

inquiry that looks beyond the parties’ characterization of the transaction . . . and

seeks to discern whether the arrangement was one Congress intended to fall

within the scope of CERCLA’s strict-liability provisions.” Id. The Supreme

Court has interpreted this inquiry to require more than “knowledge alone”; an

arranger must have taken “intentional steps to dispose of a hazardous substance.”

                                         -32-
See id. at 611–12; see also Martin K. Eby Constr. Co. v. OneBeacon Ins., 777

F.3d 1132, 1140 (10th Cir. 2015) (citing this rule in a state-law insurance case).

       Chevron contends that sufficiently intentional steps have been taken to

satisfy this requirement. It points to language from Burlington Northern that

explains “to qualify as an arranger,” a party must have entered into an

arrangement “with the intention that at least a portion of the product be disposed

of during the transfer process by one or more of the methods described in

§ 6903(3),” Burlington N. & Santa Fe Ry., 556 U.S. at 612, i.e., by discharge,

deposit, injection, dumping, spilling, leaking, or placing it into or on any land or

water, 42 U.S.C. § 6903(3).

      According to Chevron, the undisputed facts demonstrate the federal

government intentionally arranged for the disposal of hazardous substances on

and from the Questa mining lands. First, the United States sold the selected lands

to Molycorp with the knowledge that the lands were intended to be used as a

disposal area. Molycorp initially proposed to use a canyon across the Red River

as its primary waste-disposal site. Although a Forest Service report indicated that

the Red River proposal was going to be the “least expensive means of

dispos[al], . . . the impact on the environment and ecology of Red River Canyon

would be tremendous” and the proposal was thus “vigorously opposed by the

Forest Service and ecologist groups.” App., Vol. 1, at 167. As an alternative,

then, Molycorp began negotiations with the Forest Service in 1969 to facilitate a

                                        -33-
transaction in which Molycorp would give the United States “246.65 acres of land

which it own[ed] in Taos County” in exchange for “2,258 acres of National Forest

land” adjacent to the open-pit mine. Id. at 163. The Forest Service shared

Molycorp’s intent to use the selected lands as a disposal area and believed this

use would benefit the United States. See id. at 164 (“The selected lands will be

the final area of disposal for a part of the nonmineral overburden.”); id. at 166

(acknowledging that “the mine is supplying a needed mineral resource to the

Nation” and noting “several indirect benefits from the disposal of the overburden

material”).

      Second, the United States sold an additional 627 acres of land to Molycorp

with the intent that the lands be used as a tailings pond to dispose of mine

tailings. A BLM land report analyzing the proposed sale identified the lands as

“non-mineral in character” and “greatly needed as a tailings pond,” explaining the

government’s understanding that Molycorp’s “molybdenum mine is located nine

miles to the east and tailings would be piped from the mine to the pond.” Id. at

183–84. The BLM ultimately found that the sale would be “in the public interest”

and, “[c]onsidering the urgent need of the applicant for the subject tract and its

suitability for the proposed use as well as the resulting economic benefit to the

general area from the expanded mining operation, the highest and best use is that

of a tailings pond.” Id. 183, 186.




                                         -34-
       Finally, the United States routinely approved special use land authorization

permits for pipelines crossing over national forest lands with the specific intent

that Molycorp would use the pipelines to transport tailings from the mine site to

the disposal ponds. For example, a 1965 government Impact Report referred to

the pipeline as a “proposed tailings line” and acknowledged specific risks

associated with this particular use, including “the potential of the line breaking

and spilling slurry into the river, which might result in local fish kill prior to

repair of the line.” Id. at 204–05. The report nonetheless concluded “[t]he over-

all impact of this project . . . is beneficial,” id. at 205, and indicated an express

preference for Molycorp’s pipeline plan. It did so to avoid “[t]he alternative of a

mountain of tailings in the canyon around Sulfer Gulch,” which would be

“intolerable but legal.” See id. at 205. And the government had no doubt that

subsequent special use permits would likewise allow construction of pipelines to

transport mine tailings. A 1973 letter to Molycorp approved “a fourth tailings

line adjacent to [its] existing tailings pipeline.” Id. at 208.

       These government actions may well constitute sufficiently “intentional

steps” to satisfy the third condition of arranger liability. The collective effect of

the United States’s actions—including the sale of the selected lands for a waste

disposal site, sale of the land for the second tailings pond, and approval of the

tailings pipelines—was not only to ensure the likelihood of hazardous substance

disposal but also to facilitate it.

                                          -35-
      But that is not the end of our analysis. Arranger liability under CERCLA

applies only to a person who arranges for disposal “of hazardous substances

owned or possessed by such person.” 42 U.S.C. § 9607(a)(3) (emphasis added).

As we said in Raytheon, to be held liable under CERCLA as an arranger, “the

party . . . must ‘own’ or ‘possess’ the hazardous substance at issue.” 368 F.3d at

1219. Chevron suggests we revisit the ownership/possession requirement in its

entirety. But, “[a]bsent en banc consideration, we generally ‘cannot overturn the

decision of another panel of this court,’” unless an intervening Supreme Court

decision “is ‘contrary’ to or ‘invalidates our previous analysis.’” See United

States v. Brooks, 751 F.3d 1204, 1209 (10th Cir. 2014) (citations omitted). And

although Chevron implies the Supreme Court’s decision in Burlington Northern

invalidated our explanation of CERCLA’s ownership requirement set forth in

Raytheon, we are not persuaded. Beyond reproducing the statutory text,

Burlington Northern does not even mention the ownership requirement in

CERCLA’s arranger liability provision, let alone call it into question. See 556

U.S. at 611–12 (addressing whether a manufacturer that sold chemicals to

distributors was an arranger).

      Our position is consistent with several cases from other circuits. For

example, the First Circuit recognized that the statutory phrase in § 9607(a)(3) “by

any other party or entity” could ostensibly be read to modify “the preceding

words ‘owned or possessed by such person,’ which would make liable any person

                                        -36-
who arranged for the disposal of a hazardous substance ‘owned or possessed by

such person [or] by any other party or entity.’” Am. Cyanamid Co. v. Capuano,

381 F.3d 6, 23–24 (1st Cir. 2004) (brackets in original). But the court proceeded

to explain the “sentence structure of § 9607(a)(3) makes it clear” that the correct

interpretation is to read “by any other party or entity” to modify “the words

‘disposal or treatment,’ which would make the sentence read ‘any person who . . .

arranged for disposal or treatment . . . by any other party or entity’” and leave the

ownership/possession requirement intact. Id. at 24 (ellipses in original).

      Likewise, the Third Circuit agrees that for arranger liability to attach under

CERCLA, “[p]roof of ownership, or at least possession, of the hazardous

substance is required by the plain language of the statute.” Morton Int’l, Inc. v.

A.E. Staley Mfg. Co., 343 F.3d 669, 678 (3d Cir. 2003); see also, e.g., GenCorp,

Inc. v. Olin Corp., 390 F.3d 433, 445 (6th Cir. 2004) (“CERCLA imposes liability

on any person who ‘arrange[s]’ ‘by contract, agreement or otherwise’ for the

‘disposal or treatment . . . [or] for transport for disposal or treatment’ of

‘hazardous substances’ that is [sic] ‘owned or possessed’ by that person.’”

(emphasis added; brackets and ellipses in original)); Concrete Sales and Servs.,

Inc. v. Blue Bird Body Co., 211 F.3d 1333, 1337 (11th Cir. 2000) (per curiam)

(“In the present case, therefore, the [party seeking imposition of arranger

liability] must produce evidence that would allow a reasonable [factfinder] to

infer from the totality of the circumstances that [the alleged arrangers] arranged

                                          -37-
for [the] disposal of hazardous substances owned or possessed by [the alleged

arrangers].” (emphasis added)); Uniroyal Chem. Co., Inc. v. Deltech Corp., 160

F.3d 238, 243 (5th Cir. 1998) (quoting 42 U.S.C. § 9607(a)(3) as providing

arranger liability for “any person who by contract, agreement, or otherwise

arranged for disposal or treatment, or arranged with a transporter for transport for

disposal or treatment, of hazardous substances owned or possessed by such

person . . . , at any facility” (emphasis added; ellipses in original)); United States

v. TIC Inv. Corp., 68 F.3d 1082, 1086 (8th Cir. 1995) (summarizing 42 U.S.C.

§ 9607(a)(3) as providing arranger liability for “those who arranged for disposal

or treatment, or arranged for transport for disposal or treatment, of hazardous

substances which they owned or possessed” (emphasis added)).

      Chevron points to only one case which has rejected the ownership

requirement. See Cadillac Fairview/Cal., Inc. v. United States, 41 F.3d 562 (9th

Cir. 1994). In that case, the Ninth Circuit interpreted CERCLA’s statutory

language to extend arranger liability “to persons ‘otherwise arrang[ing]’ for

disposal or treatment of hazardous substances whether owned by the arranger or

‘by any other party or entity, at any facility or incineration vessel owned or

operated by another party or entity.’” Id. at 565 (emphasis added). In other

words, Cadillac Fairview interpreted arranger liability to attach not only to

hazardous substances owned or possessed by the alleged-arranger but also to such

substances owned or possessed “by any other party or entity.” Id. Even if this

                                          -38-
argument were not foreclosed by our decision in Raytheon, we find it

unpersuasive based on the statute’s plain language.

      First of all, the more natural reading of the statutory language is that the

hazardous substances must be owned or possessed by the person arranging for the

disposal or treatment of those substances. In contrast, the clause “by any other

party or entity” does not apply to ownership of the hazardous substances but, as

most courts have held, refers back to the previous clause, “for disposal or

treatment” (i.e., the phrase thus most naturally reads as the arrangement “for

disposal or treatment . . . by any other party or entity, at any facility or

incineration vessel”). This reading makes sure that the party getting paid for

disposal or treatment (and thereby taking possession or ownership of the

hazardous substances) is liable while not insulating from liability the previous

owner who arranged for the disposal or treatment. To read the provision

otherwise would render the “owned or possessed” language entirely superfluous.

Under well-established principles of statutory interpretation, Congress would not

have included an ownership or possession requirement if that requirement could

be met by any party’s or entity’s ownership or possession of the substances. 15

Our correct application of these canons of statutory construction is confirmed by

      15
          The canon against surplusage indicates that we generally must give
effect to all statutory provisions, so that no part will be inoperative or
superfluous—each phrase must have distinct meaning. See, e.g., Marx v. Gen.
Revenue Corp., 133 S. Ct. 1166, 1178 (2013); TRW Inc., 534 U.S. at 31; Lockheed
Martin Corp., 717 F.3d at 1130–31.

                                          -39-
Cadillac Fairview itself, which is untethered from CERCLA’s text. See 41 F.3d

at 565.

      Chevron also cites two cases, in addition to Cadillac Fairview, to support

its claim that other courts have rejected an ownership or possession requirement.

But as Chevron acknowledges, those cases merely “question[] whether it requires

proof of actual ownership, or may be satisfied by other evidence,” without

rejecting the requirement altogether, see Aplt. Reply Br. at 25 n.15. For example,

the Sixth Circuit acknowledged that “to say that [42 U.S.C. § 9607(a)(3)] requires

ownership or possession of the waste does not establish what evidence will satisfy

the requirement or, more particularly, whether constructive ownership or

possession will suffice.” GenCorp, Inc., 390 F.3d at 448. In interpreting the

ownership requirement, GenCorp found it appropriate to “infer that Congress

meant the phrase ‘ownership or possession’ to include constructive ownership or

possession,” and that “GenCorp’s control over the hazardous waste suffice[d] to

establish constructive ownership and possession” sufficient to trigger arranger

liability. See id. at 448–49. Likewise, the Eighth Circuit simply declined to

require rigid “proof of personal ownership or actual physical possession.” United

States v. Ne. Pharm. & Chem. Co., 810 F.2d 726, 743–44 (8th Cir. 1986)

(emphasis added). But it found that the company “had actual ‘control’ over the

. . . hazardous substances,” and that this authority was sufficient to satisfy the

ownership requirement and trigger arranger liability. See id. at 743.

                                         -40-
      Raytheon does not discuss whether anything less than actual ownership of

the hazardous substances disposed of may satisfy CERCLA’s requirements for

arranger liability, nor has Chevron made a constructive possession argument.

Chevron briefly notes that “the United States held fee title to lands from which

waste rock was extracted and therefore owned that rock,” but its briefs neither

develop this argument nor apply it to CERCLA. See Aplt. Br. at 56 n.15.

      Even if we were to reach this argument, Chevron failed to establish that the

United States owned or possessed the hazardous substances, or the mining waste

containing them. It cites to United States v. McPhilomy, 270 F.3d 1302 (10th Cir.

2001), but that criminal case did not involve valid mining claims and turned on a

very different burden of proof even as to the issues it discussed. In any event,

“the moment th[at] ore becomes detached from the soil in which it is embedded it

becomes personal property, the ownership of which is in the [person] whose

labor, capital, and skill has discovered and developed the mine[,] . . . free from

any lien, claim, or title of the United States . . . .” Forbes v. Gracey, 94 U.S. 762,

765–66 (1876). The United States neither owned nor possessed the waste rock

and tailings extracted from Chevron’s molybdenum mining activities.

      In sum, we conclude that the United States is not an “arranger” under

CERCLA with regard to the contamination located at the Questa Site because it

did not own or possess the hazardous substances disposed of.




                                         -41-
                               III. Conclusion

      We conclude that, as a matter of law, the United States is an “owner” under

42 U.S.C. § 9607(a)(2) because it owned portions of the Questa Site at the time

hazardous substances were located there. The United States is not, however, an

“arranger” under 42 U.S.C. § 9607(a)(3) because it did not own or possess the

hazardous substances disposed of. The United States is thus a PRP under

CERCLA (as an owner but not an arranger) and, as a matter of law, liable for an

equitable allocation of Chevron’s past, present, and future necessary response

costs to remediate the Questa Site, pursuant to 42 U.S.C. § 9613(f)(3)(B).

      Accordingly, we REVERSE in part and AFFIRM in part the district court’s

judgment and REMAND for further proceedings consistent with this opinion.




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