United States of America v. ASARCO, LLC, f/k/a ASARCO Inc.

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ASARCO, LLC, f/k/a ASARCO Inc.,
Defendant - Appellant.
No. 10-35824
D.C. No. 6:98-cv-00003-CCL
MEMORANDUM *
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
FILED
NOV 15 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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

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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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