The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge
ORDER and CONSOLIDATED CASES.
There are two pending motions before the Court: an unopposed motion by plaintiffs for entry of consent decree and a motion to establish a court registry to handle the settlement monies. The Court held an hearing on the motion to enter the consent decree on September 8, 2011. The Court granted the motion to enter the Consent Decree is open court and indicated it would also enter a written order.
After the liability phase of the consolidate CERCLA actions was concluded in 2003, Asarco filed for bankruptcy and the matter was stayed as to all parties in October of 2005. Subsequently, Asarco entered into a global settlement of all its CERCLA claims including the Coeur d'Alene Basin claims, and the claims against Asarco were dismissed as a result of the settlement in September of 2010. At that time, the parties requested the matter remain stayed to allow Hecla and the Plaintiffs to continue their settlement negotiations. The Court granted that request. The parties then requested the court appoint a mediator as the parties were unable on their own to reach a settlement. The Court appointed an experienced retired Judge, Richard Dana, to handle the settlement negotiations. After months of negotiations, which the Court was not a party to, the parties were able to enter a very detailed Consent Decree that was lodged with the Court in June of 2011. Accordingly, the Court now lifts the stay to rule upon the pending motions in this matter.
2. Background and No Further Public Comments
To give a little background and to address the Court's position on further public comments, the record should show the Tribe filed the first CERCLA action in 1991 and it was consolidated when the United States filed its CERCLA Complaint in 1996 seeking recovery for clean up costs from certain mining companies who had owned, operated, generated or transported hazardous waste in the Coeur d'Alene Basin since the 1800s. It took years for the litigation to reach trial on Phase 1, liability. Some of the named Defendants settled after the liability trial began. Two Defendants, Asarco and Hecla, continued with the trial regarding liability which was hotly contested. In the Court's Order on liability in 2003, the Court noted this case is "unique in its size, its history and its complexity." The Court has been on the bench for almost 50 years and has handled many complex cases, this case however, is certainly the most complex case the Court has ever had the privilege of presiding over. After 78 days of trial, 100 witnesses, 8,695 exhibits and 16,000 pages of trial transcript, this Court determined Asarco and Hecla were liable under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), the Clean Water Act ("CWA") and Resource Conservation and Recovery Act ("RCRA") for a majority (combined 53%) of the natural resource damage in the Basin. The second phase of the trial was to be set to determine the amount of damages.
The United States indicates in its motion to enter the Consent Decree that settlement negotiations with Hecla began in 2006, intensified in 2008 and led to the parties requesting a court appointed mediator in 2010. The Court indicated that the mediation was going to be the final attempt at settlement as the Court was prepared to move forward on the second phase of the trial in order to provide a resolution to this litigation. The Court acknowledges that any resolution at the trial court level does not equate to a final resolution as each party has the right to seek appellate review and this review could take years. Whether or not this Court's rulings would be upheld on appeal is a question no one can answer.
Now the Court has had the opportunity to review the Consent Decree, the public comments and the record in this matter. The Court has determined that the public has had an adequate opportunity to be heard regarding the entry of the Consent Decree when the notice seeking public comments was published in the Federal Register providing for written comments to be filed within thirty (30) days. A public hearing was held on August 1, 2011. The Court acknowledges that it also received two letters from Ms. Barbara Miller regarding the Consent Decree which the Court reviewed and provided to counsel for the parties. The Court notes Ms. Miller testified at the public hearing and her interests were also represented by the written comments filed by Robert McCarl, Ph. D.
The District of Idaho's Local Rules prohibit ex parte communication with the Court. All matters to be called to a judge's attention should be formally submitted as set forth by the Court in the public comment periods provided. Because Ms. Miller is not a party to this action and had at least two opportunities to present her comments, the Court finds Ms. Miller's request for further public testimony by Ms. Miller or other members of the public on the Consent Decree will not be granted by the Court. The Court finds the comment period provided adequate due process for public comments and good cause has not been shown to extend the comment period.
3. Consent Decree Motion - Arguments by Counsel
The Court notes the motion for entry of the Consent Decree is unopposed. All Plaintiffs (the United States, the Coeur d'Alene Tribe and the State of Idaho) agree the Consent Decree should be entered. Hecla's Response to the motion which included a statement by Phillips Baker, the CEO of Hecla Mining Company, also indicates Hecla concurs that the Consent Decree should be entered.
This Court, while not privy to the confidential information exchanged during the settlement negotiations, must make its own findings regarding the Consent Decree based on the record before the Court, the expert declarations, the public comments and the representations of counsel for the parties. This Court can only grant the motion to enter the Consent Decree if the Court finds the Consent Decree is fair, reasonable, and consistent with CERCLA. United States v. Aerojet General Corp., 606 F.3d 1142, 1152 (9th Cir. 2010). The Court heard oral argument from the parties on the pending motion to enter the Consent Decree.
As noted earlier, the Court not only presided over the liability portion of the CERCLA litigation but the Court has had the briefing of counsel, the proposed Consent Decree, and the assistance of the Court's staff attorney to go over the voluminous record in this case. The Court finds the arguments of counsel, while helpful, have not created ...