That Mine Is Yours, Not Theirs: Ninth Circuit Holds That WWII Shutdown Order Did Not Make Federal Government the CERCLA “Operator” of California Gold Mine
One perennially vexing issue for federal courts in cases brought under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as the Superfund law, is what makes someone an “operator” of a facility, and thus strictly (and, in most cases, jointly and severally) liable for cleanup costs. In particular, what degree and nature of control over a facility exercised by the government make it an operator? (We recently blogged on this issue.) In its recent decision in United States v. Sterling Centrecorp Inc., a divided panel of the Ninth Circuit held that a World War II-era federal order that shut down a gold mine in California did not give the government sufficient control over the operations of the mine to make it a CERCLA operator. Upon entering World War II, the United States faced a serious shortage of nonferrous metals, especially copper, and a corresponding shortage of the machinery and materials needed to produce them. Scarce resources needed to be redirected from nonessential operations to essential ones, and gold mines, such as the Lava Cap mine in Nevada County, California, were deemed nonessential. An order of the War Production Board required the mine to cease operations in 1943. While the order was revoked in 1945, operations at the mine never resumed. It was...