United States v. 2020-10-05 | 18-15878 | USA V. STEPHEN ELDER | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA;
CALIFORNIA DEPARTMENT OF
TOXIC SUBSTANCES CONTROL,
Plaintiffs-Appellees,
v.
STEPHEN P. ELDER,
Defendant-Appellant,
and
STERLING CENTRECORP INC.,
Defendant.
No. 18-15878
D.C. No.
2:08-cv-02556-MCE-DB
MEMORANDUM
*
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted October 25, 2019
**
San Francisco, California
FILED
OCT 5 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
* *
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

Before: MELLOY,
***
BYBEE, and N.R. SMITH, Circuit Judges.

Stephen Elder appeals from the district court’s grants of summary judgment,
concluding that he is jointly and severally liable under the Comprehensive
Environmental Response, Compensation, and Liability Act (“CERCLA”) for
response costs incurred by the governments at the Lava Cap Mine Superfund Site
(“Site”), of which he is partial owner. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
1.Elder does not contest that the four elements for strict liability under
CERCLA are satisfied in this case. See Cose v. Getty Oil Co., 4 F.3d 700, 703–04
(9th Cir. 1993). Therefore, Elder is jointly and severally liable for the entire cost
of the cleanup, see Cal. Dep’t of Toxic Substances Control v. Hearthside
Residential Corp., 613 F.3d 910, 912, 916 (9th Cir. 2010); see also 42 U.S.C.
§§ 9607(a)(4)(A), 9613(g)(2), unless he can establish that one of CERCLA’s three
affirmative defenses are applicable, see California v. Neville Chem. Co., 358 F.3d
661, 672 (9th Cir. 2004). The district court properly granted summary judgment
because the asserted statutory defenses are unavailable in this case.
* * *
The Honorable Michael J. Melloy, United States Circuit Judge for the
U.S. Court of Appeals for the Eighth Circuit, sitting by designation.
2

First, the “act of God” defense cannot be applied here, because Elder failed
to carry his statutory burden to establish that the storm alone caused the dam
collapse. See 42 U.S.C. § 9607(b)(1). Indeed, Elder does not argue that the storm
was the sole cause of the dam collapse. Elder also admits in his counterclaim that
the dam’s failure was predictable due to its precarious condition.
Elder’s asserted third-party defense also fails, because he was not an
“innocent landowner.” See Cal. Dep’t of Toxic Substances Control v. Westside
Delivery, LLC, 888 F.3d 1085, 1091–92 (9th Cir. 2018); see also Carson Harbor
Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 887 (9th Cir. 2001) (en banc).
Specifically, there is no evidence that, at the time he acquired the facility, Elder
“did not know and had no reason to know that any hazardous substance . . . was
disposed of on, in, or at the facility” as required by 42 U.S.C. § 9601(35)(A)(i).
See Westside Delivery, 888 F.3d at 1092. Furthermore, there is no evidence that
the State’s failure to enforce prior environmental orders alone caused the releases
at the Site. See 42 U.S.C. § 9607(b).
2.Elder’s statute-of-limitations argument is waived, because he did not raise it
below. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). Elder argues
that he raised the defense in his answer before the district court when he asserted
that “[t]he [governments,] because of their failure to enforce the [order] issued by
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them in 1979 to these Defendants’ predecessor in interest[,] are estopped from
claiming response costs from these defendants.” But this claim of estoppel was not
based on a statute-of-limitations rationale. Rather, Elder merely restated his
unsuccessful argument that the government should be the liable party, because they
“fail[ed] to enforce the [order] issued by them in 1979.” This language cannot
logically be read to state a statute-of-limitations claim.
3.The district court did not err in denying Elder a jury trial for two reasons: (1)
Elder has alleged no dispute of material fact to show that the district court erred in
granting the governments’ summary judgment pursuant to Fed. R. Civ. P. 56(a);
and (2) jury trials are not required where only equitable relief is sought, as is the
case here under CERCLA, see Spinelli v. Gaughan, 12 F.3d 853, 858 (9th Cir.
1993).
AFFIRMED.
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