ASARCO v. Union Pacific Railroad Company

United States Court of Appeals
For the Eighth Circuit
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No. 13-2830
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ASARCO, LLC
lllllllllllllllllllll Plaintiff - Appellant
v.
Union Pacific Railroad Company, a Utah corporation
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: May 13, 2014
Filed: August 8, 2014
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Before RILEY, Chief Judge, BEAM and SMITH, Circuit Judges.
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RILEY, Chief Judge.
Two companies with a business relationship dating back to the nineteenth
century call upon us to resolve their dispute about environmental liability for a lead
refinery and smelter—once among the world’s largest—which polluted Omaha,
Nebraska, for over a hundred years. The former American Smelting and Refining
Company, today known simply as ASARCO, LLC (Asarco), claims the Union Pacific
Railroad Company (UP) has contributed too small a share of the clean-up cost.
Asarco paid approximately $200 million to settle with the Environmental Protection
Agency (EPA), which named lead-contaminated areas of Omaha a “Superfund” site.
UP settled with the EPA for $25 million.
Under the complex statutory structure erected by Congress in the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980
(CERCLA or Act), 42 U.S.C. §§ 9601-9675, settling with the government protects
a party from further liability claims. See id. § 9613(f)(2). Despite receiving notice
of UP’s settlement, Asarco did not object before the district court1 issued the consent
decree. Asarco waited until after entry of the consent decree and brought this
collateral case. According to Asarco, UP breached the two companies’ agreement to
toll the statute of limitations while “reserv[ing] all [other] rights and defenses.” The
district court2 granted UP’s motion to dismiss, ruling UP did not breach the agreement
and the consent decree protected UP from Asarco’s claims. Having duly considered
Asarco’s assignments of error, we affirm.
I. BACKGROUND
The history of this case is an archetypal tale of industrial boom and
environmental bust.
A. The Smelter
About a year after the Golden Spike linked the coasts in 1869, the Omaha
Smelting Company began construction on land leased from UP near the eastern
terminus of the Transcontinental Railroad. See 1 Omaha: The Gate City and Douglas
1
The Honorable Laurie Smith Camp, Chief Judge, United States District Court
for the District of Nebraska.
2
The Honorable Joseph F. Bataillon, United States District Judge for the
District of Nebraska.
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County Nebraska 226 (Arthur C. Wakeley ed., 1917). Both Omaha and the smelter
grew rapidly; within two decades the smelter’s initial capital stock of $60,000
increased to $2.5 million, with over 65,000 tons of ore (then worth $14 million3)
smelted in 1890. See Lawrence H. Larsen et al., Upstream Metropolis: An Urban
Biography of Omaha & Council Bluffs 118 (2007); Nebraska: A Guide to the
Cornhusker State 232 (1939). Control of the smelter passed to the American Smelter
and Refining Company in 1889, and by the 1920s it “was reputed to be the nation’s
largest lead refinery,” “produc[ing refined lead,] copper, gold, and silver,” and
employing hundreds of immigrants who “spoke a total of fourteen languages.”
Larsen, supra, at 118, 206; see Nebraska, supra, at 232. Amid the Great Depression,
the smelter continued to produce 150,000 tons of “desilverized lead” a year, making
it “one of the largest smelters in the world.” Nebraska, supra, at 220, 232. In 1958,
the smelter still had the largest lead refining capacity in the United States: 180,000
tons per year. See United States v. Am. Smelting & Ref. Co., 182 F. Supp. 834, 851
(S.D.N.Y. 1960).
Beneath the smelter’s soaring smoke-stacks—one of which in 1939 was “said
to be the highest self-supported metal stack in existence,” Nebraska, supra, at
232—lay a darker story. An early twentieth century study of the “chief centers of the
[lead] industry,” including Omaha, found the lead poisoning rate for workers in 1912
was “a little over twenty-two for every 100 employed.” Alice Hamilton, Lead
Poisoning in American Industry, 1 J. Indus. Hygiene 8, 10 (1919). Approximately
sixty years later, we upheld a finding by the Occupational Safety and Health Review
Commission “that airborne concentrations of inorganic lead at” the Omaha smelter
3
By comparison, last month the average official cash price for a ton of lead on
the London Metal Exchange was $2,188.33. See Average Official & Settlement
Prices US$/tonne for the Month of July 2014, London Metal Exchange (July 31,
2014), www.lme.com/~/media/Files/Market%20data/Historic%20Data/July%202014.
xlsx. Multiplied by 65,000 tons, this price suggests the smelter’s 1890 output would
be worth approximately $142 million today.
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seriously threatened the lives and health of employees. Am. Smelting & Ref. Co. v.
Occ. Safety & Health Review Comm’n, 501 F.2d 504, 506 (8th Cir. 1974). The
smelter “historically discharged wastewater containing lead and other pollutants
directly into the [Missouri] river”—potentially “several thousand pounds of lead and
other heavy metals and pollutants . . . annually.” Armstrong v. ASARCO, Inc., 138
F.3d 382, 384 & n.3 (8th Cir. 1998). Not until 1994—after lawsuits by citizen
plaintiffs and the EPA—did Asarco agree to “limitations on the levels of pollutants
[the smelter] was permitted to discharge into the river.” Id. at 384-85.
According to the EPA and the State of Nebraska, lead emitted from the smelter
also blew downwind and landed in residential areas of Omaha, contaminating soil.
Screening in 1997 and 1998 found approximately 21% of children in the area had
elevated blood lead levels—associated with lowered IQ, troubled behavior, impaired
hearing, and stunted growth. See Agency for Toxic Substances & Disease Registry,
Dep’t of Health & Human Servs., Public Health Assessment for Omaha Lead 11, 15
(2005). Asarco closed the smelter in the late 1990s, paying for remediation and
donating the land to the City of Omaha to use as a riverside park. Yet approximately
10% of children in the area still had elevated levels of lead between 2000 and 2002.
See id. at 23.
B. Superfund Litigation
In 2003, the EPA designated approximately 27 square miles around the former
Asarco smelter as a Superfund site. The EPA took enforcement action against
Asarco, alleging liability of $400 million for the cost of removing lead from the
affected area. Faced with crushing environmental liabilities for “many of the largest,
oldest, and most complex Superfund sites in the country, including the two largest,”
Asarco filed for bankruptcy in 2005. In re ASARCO LLC, No. 05-21207, 2011 WL
2974957, at *9 (Bankr. S.D. Tex. July 20, 2011). In 2009, the bankruptcy court
approved Asarco’s approximately $214 million settlement of the EPA’s claims related
to the Omaha site.
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The EPA also named UP as a potentially responsible party. UP owned the
smelter site, leasing it to Asarco until the late 1940s when Asarco bought the land.
The Act extends liability to any “owner” of “any site or area where a hazardous
substance has been deposited, stored, disposed of, or placed, or otherwise come to be
located,” 42 U.S.C. §§ 9601(9), 9607(a)(1), with the only time limit on recovery
beginning to run once “remedial action” begins, id. § 9613(g)(2)(B). “Liability under
the statute is generally strict and subject to very narrow defenses.” Stewman v. Mid-
S. Wood Prods. of MENA, Inc., 784 F. Supp. 611, 615 (W.D. Ark. 1992)
(M.S. Arnold, J.). Once the government proves liability, “all of the defendants are
jointly and severally liable, unless a particular defendant can establish that his harm
is divisible, a difficult proposition.” Control Data Corp. v. S.C.S.C. Corp., 53 F.3d
930, 934 n.4 (8th Cir. 1995).
UP took the position that peeling lead-based paint—rather than airborne lead
from the smelter—was “the main lead source” in the Superfund area. To obtain
evidentiary support, UP filed numerous requests for EPA documents under the
Freedom of Information Act (FOIA), 5 U.S.C. § 552. UP discovered e-mails
indicating some EPA officials were withholding evidence which UP believed could
support its position. Learning of this possibility, Asarco sought to intervene in UP’s
FOIA case in the hope that material hidden by the EPA could provide a basis to void
Asarco’s settlement with the EPA. Yet Asarco also wanted UP to contribute a share
of the $214 million already paid. To facilitate Asarco’s intervention in the FOIA
case, UP agreed to toll the statute of limitations applicable to any contribution action
for “two years after a final judgment is obtained in the FOIA Litigation and any
appeals therefrom are exhausted.” Apart from the statute of limitations, the “Tolling
Agreement” expressly “reserve[d] all rights and defenses which [Asarco and UP] may
have . . . to contest or defend any claim or action [by] the other.” Using information
obtained by UP, Asarco succeeded in reducing its EPA payment by $15 million.
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Meanwhile, UP and the EPA agreed to settle their respective FOIA and
CERCLA claims: without admitting fault, UP would pay $25 million. Asarco’s
counsel received direct notice of the tentative agreement, and notice of the CERCLA
consent decree appeared in the Federal Register, see Notice of Consent Decrees, 76
Fed. Reg. 33,364 (June 8, 2011). Asarco did not comment or object during the thirty-
day public comment period, and the district court approved the settlements on August
9, 2011. The resulting consent decree provided UP with “protection from
contribution actions or claims” relating to the Superfund site. See 42 U.S.C.
§ 9613(f)(2).
C. This Case
On May 30, 2012, Asarco filed a complaint against UP, alleging breach of
contract and seeking contribution. UP moved to dismiss under Federal Rule of Civil
Procedure 12(b)(6), asserting the consent decree precluded Asarco’s claims.
Resisting dismissal, Asarco claimed the tolling agreement preserved the contribution
claims “unaltered” throughout the tolling period. According to Asarco, “UP promised
not to do anything to ‘alter’ Asarco’s Contribution Claim—or Asarco’s ability to
pursue that claim—for up to two years,” and UP breached that supposed promise by
settling with the EPA.
The district court disagreed and granted UP’s motion to dismiss. Based on the
plain language of the UP consent decree, the district court found “no one can sue
[UP] for ‘costs incurred’ in relation to the [Superfund site].” Because granting relief
to Asarco would “unravel[]” the consent decree, the district court found Asarco could
not prevail “absent a specific waiver.” Carefully reading the parties’ “Tolling
Agreement,” the district court found no specific waiver of any defense except one:
statute of limitations (unsurprising given the title of the agreement). Concluding all
of Asarco’s claims were either prohibited contribution claims or contribution claims
“couched as indemnification and breaches of contract,” the district court dismissed
Asarco’s complaint and entered judgment in favor of UP.
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Asarco appeals, invoking our 28 U.S.C. § 1291 appellate jurisdiction.
II. DISCUSSION
Asarco’s appeal presents three discrete questions. First, do the Act and consent
decree protect UP from Asarco’s claims? Second, did UP agree not to obtain
contribution protection or use it against Asarco? Third, is UP estopped from relying
on the consent decree as a defense? Answering these questions requires us to
interpret certain provisions of the Act, the tolling agreement, and the consent decree.
We interpret statutes and contracts de novo. See Union Pac. R.R. v. Dep’t of
Homeland Sec., 738 F.3d 885, 892 (8th Cir. 2013); Rapid Leasing, Inc. v. Nat’l Am.
Ins. Co., 263 F.3d 820, 825 (8th Cir. 2001). As to the consent decree, we typically
afford “a large measure of deference to the interpretation of the district court that
actually entered the decree.” United States v. Knote, 29 F.3d 1297, 1300 (8th Cir.
1994). But “[w]hen, as here, a district court’s interpretation of a consent decree is
based solely on the written document, we review the court’s interpretation de novo.”
White v. Nat’l Football League, 585 F.3d 1129, 1141 (8th Cir. 2009).
A. Is UP Entitled to CERCLA Contribution Protection?
We answer the first question in the affirmative. The district court correctly
recognized that all of Asarco’s claims are prohibited contribution claims even though
some are disguised—like wolves “clad, so to speak, in sheep’s clothing,” Morrison
v. Olson, 487 U.S. 654, 699 (1988) (Scalia, J., dissenting)—as breach of contract
claims.
In light of the consent decree, the Act unambiguously protects UP against any
contribution claim related to the site:
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A person who has resolved its liability to the United States . . . in an
administrative or judicially approved settlement shall not be liable for
claims for contribution regarding matters addressed in the settlement.
42 U.S.C. § 9613(f)(2); see also id. § 9622(g)(5), (h)(4) (using nearly identical
language).
The consent decree broadly defines the “matters addressed in the settlement”
as:
all response actions taken or to be taken and all response costs incurred
or to be incurred . . . at or in connection with the Site, by the United
States or any other person.
We agree with the district court that this language plainly covers all Superfund
remediation costs, whether incurred before or after the consent decree’s effective
date, including Asarco’s earlier settlement with the government. As a matter of law,
therefore, the Act protects UP from Asarco’s contribution action. See 42 U.S.C.
§ 9613(f)(2); United States v. Davis, 261 F.3d 1, 27-28 (1st Cir. 2001) (finding
statutory protection based on a nearly identical definition of “matters addressed in the
settlement”); United States v. Se. Penn. Transp. Auth., 235 F.3d 817, 822-23 (3d Cir.
2000) (reaching the same result based on similar language).
Asarco’s brief implies the Act’s contribution protection for settling parties is
unfair and hints UP acted duplicitously by settling with the government despite
Asarco’s potential contribution claim. We see nothing untoward in UP’s natural
desire to receive the benefits of settlement conferred by Congress. The Act’s
protections apply even in cases where the settling party is involved in pending
contribution litigation. See, e.g., Axel Johnson, Inc. v. Carroll Carolina Oil Co., 191
F.3d 409, 420 (4th Cir. 1999) (dismissing a pending contribution appeal as moot in
light of a settlement precluding contribution claims). By giving polluters an attractive
incentive to settle with the government, the Act spares taxpayers the expense of trial
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against companies with deep pockets and teams of lawyers. Settling existing cases
allows the government to bring new enforcement cases and recover the heavy cost of
environmental remediation from the parties responsible for the pollution, further
encouraging “polluters to act quickly and aggressively to remedy the harm they have
done.” Control Data, 53 F.3d at 936; see also United States v. BP Amoco Oil PLC,
277 F.3d 1012, 1021 (8th Cir. 2002).
While firmly promoting these purposes, the Act does not leave a party such as
Asarco “without remedy,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 164 (1803).
The problem for Asarco, as for the hapless petitioner in Marbury, is that the
appropriate remedy is not the one being sought. Asarco’s remedy was to object to
UP’s settlement and consent decree, not to launch a collateral attack.
The Act channels parties like Asarco into the settlement proceedings itself to
prevent collateral litigation from undermining the consent decree. Before final
settlement, the Act requires public notice and a comment period. See 42 U.S.C.
§ 9622(i). Asarco could have commented, but apparently chose not to. In addition,
other responsible parties like Asarco may intervene as of right in the judicial
settlement proceeding, raising any objections they wish. See, e.g., United States v.
Union Elec. Co., 64 F.3d 1152, 1170-71 (8th Cir. 1995) (reversing entry of consent
decree and remanding to allow other responsible parties to intervene); accord, e.g.,
United States v. Aerojet Gen. Corp., 606 F.3d 1142, 1149-50 (9th Cir. 2010); United
States v. Albert Inv. Co., 585 F.3d 1386, 1399 (10th Cir. 2009). Asarco did not
intervene before entry of the consent decree. With a valid excuse, Asarco might even
have intervened within a reasonable period afterward to ask for a discretionary
modification. Cf. Picon v. Morris, 933 F.2d 660, 662 (8th Cir. 1991). This too
Asarco failed to do.
Instead of pursuing the remedies available under the Act, Asarco sought to
circumvent the statutory protection conferred on settling parties. In accordance with
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clear congressional intent as expressed in the plain language of the Act, the district
court rejected Asarco’s circumvention.
B. Did UP Breach the Tolling Agreement?
We answer the second question in the negative. The district court correctly
concluded that UP neither waived the Act’s contribution protection nor breached the
tolling agreement by invoking that protection.
1. Applicable Law
Federal law governs the question whether a federal statutory right is waivable.
See, e.g., Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 90 (2000). But state
law may still have a role to play, depending on congressional authorization. See, e.g.,
Burks v. Lasker, 441 U.S. 471, 477 (1979). In some statutory domains, Congress
instructs the federal courts to “fashion a complete body of federal law.” Id. In others,
the nature of the statutory scheme requires the federal courts to incorporate state law
“as the federal rule of decision.” United States v. Kimbell Foods, Inc., 440 U.S. 715,
728 (1979). The threshold question here is whether Congress intended waiver of the
Act’s statutory settlement protection to be governed by a uniform federal rule or a
federal rule dependent on state law.4 We are not aware of any circuit decision
answering this precise question, but analogous cases lead us to conclude Congress
intended us to use state law to determine whether a party chose to waive contribution
protection.
4
We find no merit in UP’s alternative argument that the Act affirmatively
prohibits waiver. It is well established that both statutory and constitutional rights
are presumptively waivable. See, e.g., New York v. Hill, 528 U.S. 110, 114 (2000).
Giving a settling party the option to waive contribution protection furthers the Act’s
goal of promoting quick settlement with the government by enabling a party to
exclude from protection claims by another responsible party who might otherwise
intervene and derail the settlement.
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Interpreting parallel provisions of the Act permitting insurance and
indemnification for environmental liability, see 42 U.S.C. § 9607(e), other circuits
have uniformly concluded Congress did not wish to displace state law absent a
conflict with federal law. See, e.g., Harley-Davidson, Inc. v. Minstar, Inc., 41 F.3d
341, 344 (7th Cir. 1994); Beazer E., Inc. v. Mead Corp., 34 F.3d 206, 214 (3d Cir.
1994); John S. Boyd Co. v. Boston Gas Co., 992 F.2d 401, 406 (1st Cir. 1993);
United States v. Hardage, 985 F.2d 1427, 1433 n.2 (10th Cir. 1993); Mardan Corp.
v. C.G.C. Music, Ltd., 804 F.2d 1454, 1460 (9th Cir. 1986). The underlying principle
is that the Act focuses on remedying the environmental hazard, not on prescribing
how polluters privately choose to apportion the cost of doing so. See Control Data,
53 F.3d at 935-36. Although the question has never been squarely presented to our
court, we implicitly joined our sister circuits by incorporating state law in a prior
§ 9607(e) dispute, see Lion Oil Co. v. Tosco Corp., 90 F.3d 268, 270 (8th Cir. 1996),
and a prior § 9607(e)-related insurance dispute, see Aetna Cas. & Sur. Co. v. Gen.
Dynamics Corp., 968 F.2d 707, 711 (8th Cir. 1992). We see no reason to treat waiver
of § 9613(f)(2) differently from indemnification under § 9607(e), given that both
involve parties’ private allocation of costs through contract. So long as they do not
jeopardize federal goals, parties should be free to waive contribution protection
through contracts governed by state law.
2. This Case
The state law applicable to this case is that of Nebraska. The Nebraska
Supreme Court has not established a specific standard for waiver of the statutory right
to contribution protection conferred by the Act, see 42 U.S.C. § 9613(f)(2), “so we
are obligated to predict what it would hold if the issue were presented to it.”
Maschka v. Genuine Parts Co., 122 F.3d 566, 573 (8th Cir. 1997).
Waiver, under Nebraska law, “is a voluntary and intentional relinquishment or
abandonment of a known existing legal right or such conduct as warrants an inference
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of the relinquishment of such right.”5 Wheat Belt Pub. Power Dist. v. Batterman, 452
N.W.2d 49, 53 (Neb. 1990) (emphasis added). UP’s right to contribution protection
was neither “known” nor “existing” when the parties signed the tolling agreement,
which predated the consent decree conferring the right by nearly two years. Id. We
therefore predict the Nebraska Supreme Court would hold the tolling agreement did
not waive UP’s unknown, later-acquired right to contribution protection. See, e.g.,
Davenport Ltd. P’ship v. 75th & Dodge I, L.P., 780 N.W.2d 416, 425 (Neb. 2010).
In making this prediction, we recognize the Nebraska Supreme Court might
read “known existing legal right” to include future rights expressly contemplated and
relinquished. In Village of Memphis v. Frahm, 843 N.W.2d 608 (Neb. 2014), the
Nebraska Supreme Court found a party “waived any claims” by waiving “any and all
claims . . . whether known or unknown.” Id. at 613-14 (emphasis added). The Frahm
court did not specifically address whether any of the claims the party sought to raise
were unknown at the time of the waiver, but neither did the court specify the claims
were all known. It therefore seems that parties operating under Nebraska law might
be able to waive uncertain future rights through specific and unambiguous language
such as that used in Frahm. Cf., e.g., Adams v. Philip Morris, Inc., 67 F.3d 580, 584
(6th Cir. 1995) (“Where a release waives rights unknown to the releaser at the time
of signing the waiver . . . the release must be particularly scrutinized as to the intent
of the parties.”).
5
Nebraska’s definition of waiver is well established in our legal tradition.
Justice Hugo Black, for example, defined waiver as “an intentional relinquishment
or abandonment of a known right or privilege” in Johnson v. Zerbst, 304 U.S. 458,
464 (1938). At common law, it was a “frequently recognized” principle that a
landlord waives a breach by accepting rent “only where he knows [of] the [breach]
at the time.” Roe d. Gregson v. Harrison, (1788) 100 Eng. Rep. 229 (K.B.) 231-32;
2 Term Rep. 425, 430-31.
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Accepting this premise without deciding it, we still conclude UP did not waive
the Act’s protection. Far from specifically waiving “any and all” defenses “whether
known or unknown,” Frahm, 843 N.W.2d at 613, the tolling agreement in this case
expressly “reserve[d] all rights and defenses which [UP] may have, except as set forth
in th[e tolling agreement], to contest or defend any claim or action [Asarco] may
assert or initiate.” Nothing in the tolling agreement “specifically waive[d] the
statutory right,” later acquired by UP, to contribution protection under the Act. Crete
Educ. Ass’n v. Saline Cnty. Sch. Dist. No. 76-0002, 654 N.W.2d 166, 180 (Neb.
2002).
Relying on the assumption that the parties “intended to preserve [the]
contribution claims intact and unaltered until conclusion of the FOIA action,” Asarco
concludes an “explicit waiver” was not necessary. We cannot accept Asarco’s
predicate assumption because we agree with the district court that “[t]here is no clear
agreement between the parties to preserve anything other than an extended two-year
statute of limitations.” Asarco’s reliance on a provision in the tolling agreement
regarding alternative dispute resolution is especially misplaced because this provision
is inextricable from UP’s unambiguous reservation of “all [other] rights and
defenses.”
But even if Asarco’s assumption were true, it was not the “conclusion of the
FOIA action,” but rather the conclusion of the EPA’s separate CERCLA action which
gave UP contribution protection. The government notified Asarco in a pre-settlement
filing in the FOIA action that “[i]f settlement negotiations between [UP and the EPA]
are successful in resolving . . . the CERCLA claims, . . . [they] would then file that
settlement agreement in the context of a CERCLA case.” (Emphasis added). That is
precisely what happened. The FOIA and CERCLA cases, resolved through two
settlements on the same date, remained formally distinct. Asarco’s contribution
claims remained fully intact until the end of the FOIA case, when UP—without
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breaching any provision of the tolling agreement—simultaneously received a
statutory defense by settling the CERCLA case.
In any event, Asarco’s conclusion is independently flawed. UP’s contribution
protection is a statutory right, and Nebraska law requires waiver of known and
existing statutory rights to be “clear and unequivocal.” Bacon v. DBI/SALA, 822
N.W.2d 14, 32 (Neb. 2012). The Nebraska Supreme Court “‘will not infer from a
general contractual provision that the parties intended to waive a statutorily protected
right unless the undertaking is explicitly stated.’” Hogelin v. City of Columbus, 741
N.W.2d 617, 624 (Neb. 2007) (emphasis added) (quoting Metro. Edison Co. v.
NLRB, 460 U.S. 693, 708 (1983)). We agree with the district court that the tolling
agreement contains “no language that expressly waives the CERCLA contribution
defense.” See, e.g., Zarrs v. Keck, 58 N.W. 933, 935 (Neb. 1894).
Given that UP had not yet acquired statutory contribution protection, we are
all the more convinced there was no waiver under Nebraska law. UP also did not
breach any contractual obligation to Asarco because nothing in the tolling agreement
prevented UP from obtaining protection under the Act.
C. Is UP Estopped from Invoking Contribution Protection?
We decline to answer the third question because Asarco never presented its
estoppel argument to the district court.
On appeal, Asarco informs us Count III of its complaint, requesting a
declaration that UP “may not assert contribution protection under [the Act],” rests on
an estoppel theory. Asarco accuses the district court of “fail[ing] to consider whether
the allegations in the Complaint regarding [UP’s] misleading communications could
form the basis for estoppel” and “simply ignor[ing] these allegations in the
Complaint, which are sufficient to make out a claim for declaratory judgment in
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Count III based on estoppel or waiver of the right of contribution protection.” Asarco
also accuses UP of “having ignored Count III of the Complaint below.”
Asarco’s accusations are unfounded. None of Asarco’s district court filings
mention estoppel. Asarco’s response to UP’s motion to dismiss had only this to say
about Count III:
Count III (“Declaratory Judgment Under Federal Law”) is a properly
pled claim for a declaratory judgment that UP “must abide by its
promises in the Tolling Agreement to preserve Asarco’s claims unaltered
for the term of the Tolling Agreement and may not assert contribution
protection . . . against Asarco’s contribution claim . . . related to the
[site].” The Federal Declaratory Judgments Act enables this Court to do
exactly what Asarco’s claim requests—“declare the rights and other
legal relations of any interested party seeking such declaration.” 28
U.S.C. § 2201(a). The Eighth Circuit routinely upholds declaratory
judgments that “determine” contractual rights. See, e.g., Maytag Corp.
v. Int’l Union, United Auto., Aerospace & Agric. Implement Workers
of Am., 687 F.3d 1076, 1083 (8th Cir. 2012).
(Omissions in original) (citation to the record omitted) (emphasis added). Not only
does this paragraph—the only one addressing Count III—fail to mention estoppel, it
expressly links Count III solely to “promises in the Tolling Agreement” and asks for
a declaration of “contractual rights.”
Having thus limited itself to the tolling agreement and failed to mention
estoppel, Asarco should not be surprised neither the district court nor UP searched the
record to uncover vague extra-contractual allegations. “‘Judges are not like pigs,
hunting for truffles buried in briefs’” or the record. Brown v. City of Jacksonville,
711 F.3d 883, 888 n.5 (8th Cir. 2013) (quoting United States v. Dunkel, 927 F.2d
955, 956 (7th Cir. 1991) (per curiam)).
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Asarco forfeited the right to relief on appeal by failing to raise its estoppel
theory below. See, e.g., Hartman v. Smith, 734 F.3d 752, 761-62 (8th Cir. 2013).
III. CONCLUSION
Called upon for the second time in the last hundred years to resolve a smelter-
related dispute between Asarco and UP, see Am. Smelting & Ref. Co. v. Union
Pacific R.R., 256 F. 737 (8th Cir. 1919), we affirm the district court’s well-reasoned
opinion and judgment.
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