                            NOT FOR PUBLICATION                          FILED
                    UNITED STATES COURT OF APPEALS                       MAY 25 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    15-35192

      Plaintiff-counter-                        D.C. No. 2:11-cv-00127-RCT
      defendant-Appellee,

 v.                                             MEMORANDUM*

FEDERAL RESOURCES
CORPORATION,

      Defendant-counter-claimant-
      Appellant,

BLUM REAL ESTATE TRUST; BENTLY
J. BLUM, Trustee of the Blum Real Estate
Trust; CAMP BIRD COLORADO, INC.,

                Defendants.

                   Appeal from the United States District Court
                             for the District of Idaho
                   Richard C. Tallman, Circuit Judge, Presiding

                       Argued and Submitted May 16, 2017
                              Seattle, Washington

Before: GOULD and PAEZ, Circuit Judges, and LEMELLE,** District Judge.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Ivan L.R. Lemelle, Senior United States District Judge
for the Eastern District of Louisiana, sitting by designation.
      Federal Resources Corporation (FRC) appeals the district court’s grant of

summary judgment in favor of the United States on the issues of (1) the United

States’ liability as an “arranger” under the Comprehensive Environmental

Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9607(a)(3);

and (2) the apportionment and divisibility of the clean-up costs; and (3) that FRC

did not create a genuine issue of material fact as to the United States Forest

Service’s (USFS) compliance with the National Contingency Plan (NCP) at the

North Dump. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      (1) The United States is not liable as an “arranger” under CERCLA. The

statute imposes strict liability for environmental contamination on, among others,

“any person who by contract, agreement, or otherwise arranged for disposal . . . of

hazardous substances owned or possessed by such person, by any other party or

entity, at any facility . . . owned or operated by another party or entity and

containing such hazardous substances.” 42 U.S.C. § 9607(a)(3). “[A]n entity may

qualify as an arranger under § 9607(a)(3) when it takes intentional steps to dispose

of a hazardous substance.” Burlington N. & Santa Fe Ry. Co. v. United States, 556

U.S. 599, 611 (2009). Although knowledge that a hazardous substance will be

dumped “may provide evidence of the entity’s intent to dispose of its hazardous

wastes, knowledge alone is insufficient to prove that an entity planned for the

disposal.” Id. at 612 (internal quotation marks omitted). The entity must have

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entered into the agreement with the intent that there be a “disposal.” See id.

      Here, there is no evidence that the United States entered into the Exploration

Project Contract with the Funnell and Majer Mining Company (F&M) with the

intent of disposing of hazardous substances. The evidence shows: First, that the

United States was interested in the mill and may have encouraged F&M to build it

because of the anticipated economic benefits; second, that the United States paid

50% of the total cost of F&M’s exploration mining project in exchange for

royalties on “the net smelter returns or other net proceeds realized from such ore,

concentrates, or metal produced”; third, that the United States could—and

apparently did—inspect and advise F&M on their operation; and finally, that the

United States knew mine tailings were being stored on-site and was indifferent to

the disposal of hazardous substances. Missing is any evidence that the government

intended to dispose of waste for the operator of the mine. At most, the evidence

recited above establishes that the United States knew the mine produced tailings

that were stored at the Conjecture Mine Site and was indifferent to the disposal of

hazardous substances. This is insufficient to establish arranger liability, which

requires intent to dispose of the waste. See Burlington N., 556 U.S. at 612; Team

Enters., LLC v. W. Inv. Real Estate Tr., 647 F.3d 901, 909–10 (9th Cir. 2011).

      (2) FRC did not provide the court with a reasonable basis for apportioning

the harm at the Conjecture Mine Site. See Burlington N., 556 U.S. at 614. The



                                          3
“harm” in a CERCLA case is “the contamination traceable to each defendant.”

United States v. Burlington N. & Santa Fe Ry. Co., 520 F.3d 918, 939 (9th Cir.

2008), rev’d on other grounds by Burlington N., 556 U.S. 599. FRC did not offer

any evidence showing the amount of contamination its waste material contributed

to the Conjecture Mine Site, as compared to the amount of contamination the waste

of other potentially responsible parties contributed to the site. Divisibility can be

established by volumetric evidence and geographic distinctness, see United States

v. Hercules, Inc., 247 F.3d 706, 719 (8th Cir. 2001), but there must be “evidence of

a relationship between the volume of waste, the release of hazardous substances,

and the harm at the site,” In re Bell Petroleum Servs., Inc., 3 F.3d 889, 900 (5th

Cir. 1993). Here, there is no evidence of that relationship, and there is no

reasonable basis for apportionment.

      (3) The removal action at the North Dump was not inconsistent with the

NCP. See 42 U.S.C. § 9607(a)(4)(A). Because FRC does not contest that the

United States has established a prima facie case to recover its response costs, the

burden shifted to FRC to create a genuine issue of material fact as to whether

USFS’s response action at the North Dump “was inconsistent with the [NCP].”

United States v. Chapman, 146 F.3d 1166, 1169 (9th Cir. 1998). FRC did not

carry its burden. The record shows that USFS considered the site evaluation, and

the relevant mandatory factors outlined in the NCP. 40 C.F.R. § 300.415(a)(1),



                                           4
(b)(2). It determined that five factors warranted a removal action. USFS’s

removal action was not “arbitrary and capricious or otherwise not in accordance

with law.” 42 U.S.C. § 9613(j)(2); see also Chapman, 146 F.3d at 1172–73.

      AFFIRMED.




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