                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 17 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ASARCO LLC,                                     No.    18-35713

                Plaintiff-Appellant,            D.C. No. 2:12-cv-00283-EJL

 v.
                                                MEMORANDUM*
UNION PACIFIC RAILROAD
COMPANY, a Utah corporation,

                Defendant-Appellee.

                   Appeal from the United States District Court
                             for the District of Idaho
                    Edward J. Lodge, District Judge, Presiding

                        Argued and Submitted July 9, 2019
                              Seattle, Washington

Before: WATFORD and MILLER, Circuit Judges, and ROTHSTEIN,** District
Judge.

      ASARCO LLC brought this action against Union Pacific Railroad Company

under section 113(f) of the Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9613(f), seeking


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Barbara Jacobs Rothstein, United States District Judge
for the Western District of Washington, sitting by designation.
contribution for cleanup costs at the Coeur d’Alene Superfund Site. Following a

bench trial, the district court entered judgment in favor of Union Pacific,

concluding that (1) Asarco did not meet its burden under section 113(f) to show

that it paid more than its proportionate share of cleanup costs and (2) Asarco

released its claim through a settlement agreement with Union Pacific. Asarco now

appeals. We have jurisdiction under 28 U.S.C. § 1291, and we affirm because the

agreement released Asarco’s claim. We therefore need not address the district

court’s alternative holding based on section 113(f).

      In the settlement agreement, which the parties agree is governed by Texas

law, Asarco agreed to release “any and all damages, losses, expenses, costs,

liabilities, claims, demands, suits, causes of action, and complaints, of any kind,

character or description, in law or in equity, whether known or unknown, arising

out of or in any way connected with . . . Remaining Sites Costs.” The agreement

defined “Remaining Sites Costs” to include “claims for contribution and indemnity

for past and future costs of response under CERCLA incurred by [Union Pacific]

at” the Coeur d’Alene Superfund Site.

      Previously, on appeal from the district court’s dismissal of this action under

Federal Rule of Civil Procedure 12(b)(6), we considered whether the agreement’s

plain language released Asarco’s claim. ASARCO LLC v. Union Pac. R.R. Co., 765

F.3d 999 (9th Cir. 2014). We determined that the agreement was ambiguous. Id. at


                                          2
1009. Emphasizing that the agreement refers to costs “incurred by” Union Pacific,

we explained that it could be read to mean “that Asarco’s contribution claim

against Union Pacific is released because the claim is broadly related to CERCLA

response costs incurred by Union Pacific,” but it “could also plausibly mean that

Asarco’s contribution claim against Union Pacific is reserved, not released,

because the claim only relates to response costs incurred by Asarco.” Id. We

concluded that “interpretation of the agreement presents a fact issue that cannot be

resolved on a motion to dismiss,” and we remanded so the district court could

consider “evidence of the surrounding circumstances.” Id. (citation omitted); see

David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 450–51 (Tex. 2008) (in construing

an ambiguous contract, courts may consider extrinsic evidence to determine the

parties’ intent).

       On remand, the district court conducted a 13-day bench trial during which

the parties presented testimonial and documentary evidence, including extrinsic

evidence of the parties’ intent. The court found that “Union Pacific’s interpretation

of the contract is the most reasonable in this case given the communications

between the parties and circumstances at the time.”

       “The intent of the parties at the time a contract is executed is a question of

fact for the trial court,” and “[i]n a nonjury trial, the court’s findings of fact will

not be disturbed unless found to be clearly erroneous.” In re U.S. Fin. Sec. Litig.,


                                            3
729 F.2d 628, 632 (9th Cir. 1984) (internal quotations and citation omitted). Here,

the record reveals no clear error in the district court’s finding.

      Asarco objects that the district court based its conclusion, in part, on the

language of the settlement agreement. According to Asarco, the district court erred

because it concluded, contrary to this court’s mandate, that “the language is

sufficiently clear to be interpreted without extrinsic evidence.” But the district

court did no such thing. To the contrary, the district court carefully considered the

extrinsic evidence presented at trial, including emails and letters between the

parties during negotiations, and it evaluated conflicting witness testimony.

      The record supports the district court’s finding. To be sure, the evidence did

not show that the parties specifically considered whether the release would cover

this particular claim. But under Texas law, a valid release need not “anticipate and

identify each potential cause of action relating to the release’s subject matter,” and

it “may encompass unknown claims.” Keck, Mahin & Cate v. Nat. Union Fire Ins.

Co., 20 S.W.3d 692, 698 (Tex. 2000). And the district court identified evidence

showing that the parties intended a global resolution of all claims between them, a

resolution that Asarco’s interpretation would frustrate.

      For example, during the negotiation of the agreement, Asarco’s attorney sent

a letter to Union Pacific’s attorney, stating that “Asarco is prepared to resolve all

claims between it and [Union Pacific],” including claims related to the “Coeur


                                            4
d’Alene and Bunker Hill Idaho Sites” and subject to “mutual releases.” The same

attorney later emailed Union Pacific’s attorney, stating that she was seeking “to get

[Union Pacific] a comprehensive offer on all issues.” Further, the district court

appropriately considered Asarco’s failure to disclose its CERCLA contribution

claim against Union Pacific in a draft plan of bankruptcy reorganization after it

executed the settlement agreement. See Henshaw v. Tex. Nat. Res. Found., 216

S.W.2d 566, 570 (Tex. 1949) (courts may consider a party’s post-contract

performance as evidence of its intent).

      Asarco notes that it presented evidence that might have supported a contrary

conclusion. But “[c]lear error is not demonstrated by pointing to conflicting

evidence in the record.” United States v. Frank, 956 F.2d 872, 875 (9th Cir. 1991).

      AFFIRMED.




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