                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 15 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-35824

             Plaintiff - Appellee,               D.C. No. 6:98-cv-00003-CCL

  v.
                                                 MEMORANDUM *
ASARCO, LLC, f/k/a ASARCO Inc.,

             Defendant - Appellant.


                  Appeal from the United States District Court
                           for the District of Montana
                Charles C. Lovell, Senior District Judge, Presiding

                     Argued and Submitted October 13, 2011
                                Portland, Oregon




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: BERZON and N.R. SMITH, Circuit Judges, and SMITH, District Judge.**


      ASARCO appeals the district court’s denial of its motion to terminate the

East Helena CAMU Trust (“CAMU Trust”) and grant of summary judgment in

favor of the United States. We affirm.

      The CAMU Trust is an irrevocable trust, established by ASARCO pursuant

to a 1998 consent decree. The trust’s stated purpose is to “provide all or part of

such financial assurance for certain of the work,” and the agreement directs the

trustee to “reimburse the Grantor [ASARCO] or other persons . . . for corrective

action expenditures . . .” (emphasis added). Attached to the trust agreement is a

schedule of work and costs for a Corrective Action Management Unit (CAMU)

Phase 2 Cell. The work on that cell has yet to be completed, and funds remain in

the trust. Accordingly, the trust’s purpose has not been fulfilled or become

impossible to fulfill, and the trust does not terminate as a matter of Montana law.

See Mont. Code Ann. § 72-33-411(1); see also Testamentary Trust of Child, 457

P.2d 447, 452 (Mont. 1969).

      The fact that a subsequent bankruptcy settlement agreement resolved any

remaining or future liability on ASARCO’s part for that work also has no bearing

       **
             The Honorable William E. Smith, District Judge for the U.S. District
Court for the District of Rhode Island, sitting by designation.

                                    Page 2 of 3
on the trust’s termination, since the trust’s language is clear that the trustee is to

reimburse ASARCO “or other persons” for work done on the CAMU Phase 2 Cell.

Similarly, that the bankruptcy settlement agreement established a separate trust to

fund cleanup activities at various locations, including at the East Helena site, which

trust’s funds could be used by the government for the CAMU Phase 2 Cell, also

has no bearing on the CAMU Trust’s termination. The CAMU Trust’s purpose is

clear, and it has not been fulfilled or become impossible to fulfill as a result of any

provision in the bankruptcy settlement agreement. See Mont. Code Ann. § 72-33-

411(1); see also Testamentary Trust of Child, 457 P.2d at 452.

      AFFIRMED.




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