ARC Ecology v. United States Department of the Air Force

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARC ECOLOGY; FILIPINO/AMERICAN 
COALITION FOR ENVIRONMENTAL
SOLUTIONS; NORMA DUERO; NOEL
DUERO; MARITESS DUERO; VICTORIA
N. MANIAGO; MARITESS BALINTAG;
ELSA E. GONZAGA; MELODY
O’BRIEN; CONNIE R. DOMDOM;
ROSALINA GERONIMO; ALMA G.
BALAWAN; ROSALINDA I. PERAAN;
ZENAIDA A. RILEY; MARISSA C.
NAVIDAD; DOLORES C. MOSE;
ADRIANO B. LAZARTE; LOITA No. 04-15031
SAYAT; FRANCISCA SMITH; EDYA P.
WARNER; JENNIFER LANSANGAN;
ANGELICA WARNER; CRISPIN DIALA;
 D.C. No.
CV-02-05651-JW
CHRISTINA MUNOZ; FERNANDO OPINION
FERRER; HILARIA FERRER; EMILIO
FERRER; RIA RICHELLE LIMID;
GILBERT PINEDA; FELIPE ESPINOSA,
JR.; RAMIL ESPINOSA; MARIO
MANIALUNG; BETTY B. VALENCIA;
ANGELINA M. LIWANAG; MARY ANN
V. DIEGO; ERNESTO S. BORJA;
OFELIA M. DIZON; NERMINDA B.
SAGUM,
Plaintiffs-Appellants,
v.

7067
7068 ARC ECOLOGY v. USAF
UNITED STATES DEPARTMENT OF THE 
AIR FORCE; UNITED STATES
DEPARTMENT OF THE NAVY; UNITED
STATES DEPARTMENT OF DEFENSE;
DONALD RUMSFELD, in his capacity 
as United States Secretary of
Defense,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
Argued and Submitted
January 11, 2005—San Francisco, California
Filed June 15, 2005
Before: Myron H. Bright,* A. Wallace Tashima, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan
*The Honorable Myron H. Bright, Senior United States Circuit Judge
for the Eighth Circuit, sitting by designation.
ARC ECOLOGY v. USAF 7071
COUNSEL
Scott J. Allen, San Francisco, California, for the plaintiffs-
appellants.
Todd S. Kim (argued), Martin F. McDermott, and David C.
Shilton (briefs), U.S. Department of Justice, Washington,
D.C., for the defendants-appellees.
OPINION
CALLAHAN, Circuit Judge:
A decade after the United States vacated its occupation of
Clark Air Force Base (“Clark”) and Subic Naval Base
(“Subic”) in the Philippines, the plaintiffs-appellants (“the
appellants”) seek to invoke specialized statutory procedures
under the Comprehensive Environmental Response, Compen-
sation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601 et
seq., to compel the U.S. government to perform a preliminary
assessment and cleanup of the alleged contamination thereon.
As citizens and residents of the Philippines, the appellants
argue that CERCLA applies extraterritorially to afford them
relief. The district court dismissed the appellants’ complaint
for failure to state a claim. We affirm because CERCLA does
not provide for the extraterritorial application sought by the
appellants.
I
A. Statutory and Regulatory Background
In 1980, the 96th Congress enacted CERCLA in response
to the “serious environmental and health risks posed by indus-
7072 ARC ECOLOGY v. USAF
trial pollution.” United States v. Bestfoods, 524 U.S. 51, 55
(1998). As its name suggests, “ ‘CERCLA is a comprehensive
statute that grants the President broad power to command
government agencies and private parties to clean up hazard-
ous waste sites.’ ” Id. (quoting Key Tronic Corp. v. United
States, 511 U.S. 809, 814 (1994)); accord 42 U.S.C.
§ 9604(a). CERCLA’s primary objectives are “ ‘to ensure the
prompt and effective cleanup of waste disposal sites, and to
assure that parties responsible for hazardous substances [bear]
the cost of remedying the conditions they created.’ ” Pinal
Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1300
(9th Cir. 1997) (quoting Mardan Corp. v. C.G.C. Music, Ltd.,
804 F.2d 1454, 1455 (9th Cir. 1986)).
The statute also provides for a hazard-ranking system by
directing the President to publish the National Contingency
Plan (“NCP”), which is a set of regulations that identifies the
methods for investigating contamination and the criteria for
determining appropriate cleanup actions. 42 U.S.C. § 9605.
The President must list as part of the NCP “national priorities
among the known releases or threatened releases throughout
the United States.”1 Id. § 9605(a)(8)(B). The resulting list is
known as the National Priorities List. Id.; 40 C.F.R.
§ 300.425(b).
Section 105(d) of CERCLA, the provision under which the
appellants bring suit, provides in pertinent part that:
Any person who is, or may be, affected by a release
. . . may petition the President to conduct a prelimi-
nary assessment of the hazards to public health and
the environment which are associated with such
release . . . . If the President has not previously con-
ducted a preliminary assessment of such release, the
1
Unless indicated otherwise, our use of the term “release” refers to both
a release and a threatened release of a hazardous substance, pollutant, or
contaminant. 42 U.S.C. § 9604(a).
ARC ECOLOGY v. USAF 7073
President shall, within 12 months after the receipt of
any such petition, complete such assessment or pro-
vide an explanation of why the assessment is not
appropriate. If the preliminary assessment indicates
that the release . . . may pose a threat to human
health or the environment, the President shall
promptly evaluate such release . . . in accordance
with the hazard ranking system . . . to determine the
national priority of such release[.]
42 U.S.C. § 9605(d).
CERCLA supplies citizens with the right to bring a claim
in certain circumstances. Id. § 9659. A citizen may bring a
suit against those “alleged to be in violation of any standard,
regulation, condition, requirement, or order” under CERCLA.
Id. § 9659(a). A citizen may also sue the United States for
failing to adhere to nondiscretionary duties under CERCLA.
Id.
The President generally has delegated the authority for
cleanups at federal facilities to the particular federal agencies
that administer the facilities. Id. § 9615 (authorizing delega-
tion). Response authority vests in the Secretary of Defense
(“Secretary”) when it comes to releases on or originating from
a Department of Defense installation. Exec. Order No.
12,580, § 2(d).
In conjunction with CERCLA’s amendments of 1986, and
premised on this delegation to the Secretary, Congress estab-
lished the Defense Environmental Restoration Program
(“DERP”). 10 U.S.C. §§ 2700 et seq. DERP directs the Secre-
tary to “carry out a program of environmental restoration” at
facilities under his jurisdiction, but does not establish what the
program should entail. Id. § 2701(a)(1)-(2), (b). DERP, how-
ever, does make the Secretary responsible for carrying out
“response actions with respect to releases of hazardous sub-
stances from . . . [e]ach facility or site which was under the
7074 ARC ECOLOGY v. USAF
jurisdiction of the Secretary and . . . possessed by the United
States at the time of actions leading to contamination of haz-
ardous substances.” Id. § 2701(c)(1)(B).
B. Factual and Procedural Background
The United States began its operation of Clark and Subic
in the early Twentieth Century when it had control of the
Philippines. In 1947, after the Philippines attained indepen-
dence, the United States and the Philippine government
entered into an agreement that allowed the United States to
continue operating Clark and Subic (“Bases Agreement”). 61
Stat. 4019, T.I.A.S. No. 1775, 1947 U.S.T. LEXIS 393
(1947). The United States maintained the bases until 1992,
when it withdrew its military personnel and turned the bases
over to the Philippine government.
The appellants are two non-profit environmental organiza-
tions and 36 individual Philippine residents “who live and/or
travel . . . and/or have family members that live and/or travel
on or near the Clark and/or Subic properties[.]” The
defendants-appellees (“the appellees”) are the Department of
the Air Force, Department of the Navy, Department of
Defense, and the Secretary in his official capacity. In June
2000, the appellants petitioned appellees Air Force and Navy
to conduct preliminary assessments at Clark and Subic. The
appellees declined, stating that “CERCLA does not apply to
. . . property [ ] located outside the territorial boundaries of
the United States” and that “the Philippine government has
relinquished any right to demand environmental restoration of
the [ ] property by executing a[n] amendment to the [ ] Bases
Agreement.”
In December 2002, the appellants commenced this CER-
CLA citizens’ suit, alleging that they have been or are likely
to be exposed to contamination at Clark and Subic created
during the prior American occupation of those facilities. They
sought an order compelling the defendants to conduct prelimi-
ARC ECOLOGY v. USAF 7075
nary assessments at Clark and Subic and a declaratory judg-
ment that CERCLA applies to those bases.
The appellees responded by filing a motion to dismiss, con-
tending, inter alia, that the complaint failed to state a claim
pursuant to Federal Rule of Civil Procedure 12(b)(6). The dis-
trict court granted the motion to dismiss, concluding that the
relevant provisions of CERCLA do not apply extraterritori-
ally. The court relied on the statutory presumption that “ ‘leg-
islation of Congress, unless a contrary intent appears, is meant
to apply only within the territorial jurisdiction of the United
States.’ ” ARC Ecology v. United States Dep’t of the Air
Force, 294 F. Supp. 2d 1152, 1157 (N.D. Cal. 2003) (quoting
EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991)
(“Aramco”)). The appellants timely appealed from the final
judgment of dismissal. FED. R. APP. P. 4(a).
II
We review de novo a district court’s interpretation and con-
struction of a federal statute. SEC v. McCarthy, 322 F.3d 650,
654 (9th Cir. 2003). De novo review also applies to a dis-
missal for failure to state a claim under Rule 12(b)(6). Thomp-
son v. Davis, 295 F.3d 890, 895 (9th Cir. 2002) (per curiam),
cert. denied, 538 U.S. 921 (2003).
With respect to a Rule 12(b)(6) dismissal, appellate review
is limited to the contents of the complaint. Campanelli v.
Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996). We take as
true all allegations of material fact in the complaint and con-
strue them in the light most favorable to the claimant. Thomp-
son, 295 F.3d at 895. Dismissal of the complaint is
appropriate only if it appears beyond doubt that the claimant
can prove no set of facts in support of the claim which would
entitle him to relief. Id. We may, however, affirm the district
court’s dismissal for failure to state a claim on any basis sup-
ported in the record. Ove v. Gwinn, 264 F.3d 817, 821 (9th
7076 ARC ECOLOGY v. USAF
Cir. 2001); Romano v. Bible, 169 F.3d 1182, 1185 (9th Cir.
1999).
A. CERCLA’s Application to Clark and Subic
1. CERCLA’s Geographic Scope
To determine whether the disputed provisions of CERCLA
apply to Clark and Subic, we look first to the plain language
of the statute. Barnhart v. Sigmon Coal Co., 534 U.S. 438,
450 (2002); Wilderness Soc’y v. Fish & Wildlife Serv., 353
F.3d 1051, 1060 (9th Cir. 2003) (en banc). Section 105(d) is
silent as to the locations it covers and who may petition for
a preliminary assessment. It generally refers to releases with-
out providing any geographic boundaries, and its identifica-
tion of who may petition for a preliminary assessment is
equally vague: “[a]ny person who is, or may be, affected by
a release.” 42 U.S.C. § 9605(d).
The appellants contend that the district court erred in its
determination that section 105(d) of CERCLA does not apply
to the alleged pollution of Clark and Subic. They claim that
Congress clearly expressed its intent to have CERCLA apply
to former military bases located outside the United States. To
support their argument, they point to CERCLA’s definition of
the “United States,” which includes “the several States of the
United States, the District of Columbia, the Commonwealth
of Puerto Rico, Guam, Amercian Samoa, the [U.S.] Virgin
Islands, the Commonwealth of the Northern Marianas, and
any other territory or possession over which the United States
has jurisdiction.” 42 U.S.C. § 9601(27) (emphasis added).
The appellants also argue that Congress’s extraterritorial
intent appears in the plain language of DERP, which provides
that “[t]he Secretary shall carry out (in accordance with the
provisions of this chapter . . . and CERCLA . . .) all response
actions with respect to releases from . . . [e]ach facility or site
which was under the jurisdiction of the Secretary and . . . pos-
ARC ECOLOGY v. USAF 7077
sessed by the United States at the time of actions leading to
contamination[.]” 10 U.S.C. § 2701(c)(1)(A)-(B).
Based on these provisions, reasonable minds could con-
clude that, when it was enacted, CERCLA applied to Clark
and Subic because they were possessed by the U.S. Id. The
government states, however, that the most reasonable con-
struction of “possession” would be U.S. property that does not
rest within the territory of another sovereign nation. We need
not decide this point, however, because, as we explain below,
even if CERCLA did apply to these former military installa-
tions when enacted, the appellants would still have to show
that they could state a claim when they filed their action. This
they cannot do.
2. No Evidence of Congress’s Intent to Provide Relief
to Foreign Claimants Like the Appellants
[1] The appellants cannot state a claim under CERCLA due
to the statutory presumption against extraterritoriality. The
Supreme Court and this court have adhered to the longstand-
ing principle of American law that legislation is presumed to
apply only within the territorial jurisdiction of the United
States unless the contrary affirmative intention of Congress is
clearly expressed. Aramco, 499 U.S. at 248 (quoting Foley
Bros. v. Fliardo, 336 U.S. 281, 285 (1949)); Subafilms, Ltd.
v. MGM-Pathe Communications Co., 24 F.3d 1088, 1095 (9th
Cir. 1994). Courts must assume that Congress legislates with
knowledge of the presumption that a statute “is primarily con-
cerned with domestic conditions.” Aramco, 499 U.S. at 248
(quotations omitted); see also Small v. United States, 125
S. Ct. 1752, 1755 (2005) (“In determining the scope of [a]
statutory phrase we find help in the commonsense notion that
Congress generally legislates with domestic concerns in
mind.” (quotation omitted)). In essence, then, courts must
resolve restrictively any doubts concerning the extraterritorial
application of a statute. Smith v. United States, 507 U.S. 197,
204 (1993).
7078 ARC ECOLOGY v. USAF
[2] In Aramco, the Supreme Court held that Title VII of the
Civil Rights Act of 1964 did not provide a claim to anyone
living outside the territory of the United States even though
the statute contained broad provisions extending its prohibi-
tions to “ ‘any activity, business, or industry in commerce.’ ”
Aramco, 499 U.S. at 249 (quoting 42 U.S.C. § 2000e(h)).
Despite administrative interpretations of both the EEOC and
the Justice Department allowing individuals employed abroad
by U.S. companies to seek relief under Title VII’s protections,
the Court viewed the statute’s language to be an insufficient
indication to override the presumption against extraterritorial-
ity. Id. at 251-53, 258. The Court ruled that a statute could
overcome the presumption only through a “clear statement” in
the statute itself indicating congressional intent to provide
relief to such foreign claimants.2 Id. at 258.
[3] Applying the presumption against extraterritoriality to
the case at bar, we can find no evidence that Congress
expressly (or implicitly) intended to authorize suits under
CERCLA by foreign claimants allegedly affected by contami-
nation occurring on a U.S. military base located in a foreign
country.3 Accord Small, 125 S. Ct. at 1756 (finding “no con-
2
In a more recent decision, the Supreme Court relaxed the requirement
of a “clear statement” of congressional intent within the statute. Smith, 507
U.S. at 204. Writing for the majority, Chief Justice Rehnquist stated that
there must only be “clear evidence” of congressional intent to apply the
statute extraterritorially. Id. This slight modification of the direct state-
ment requirement is significant because it allows the courts greater leeway
in determining whether Congress intended to override the presumption
against extraterritoriality. Id. at 201-03. In discerning Congress’s intent,
Chief Justice Rehnquist considered sources other than the language of the
statute itself, including the structure of the act, legislative history, and
other non-textual sources. Id. Here, sources other than CERCLA’s express
language do not provide any evidence that Congress intended for the stat-
ute to apply extraterritorially.
3
The appellants’ contention that DERP (10 U.S.C. § 2701(c)(1)(A)-(B))
requires the Secretary to apply CERCLA to foreign claimants affected by
contamination occurring on any foreign military base also fails to rebut the
ARC ECOLOGY v. USAF 7079
vincing indication to the contrary” where a “statute’s lan-
guage does not suggest any intent to reach beyond domestic”
conditions). Even if we were to accept that the language in
CERCLA cited by the appellants may be interpreted as bring-
ing such sites within the geographic reach of the statute, this
would not overcome the statutory presumption against extra-
territoriality, which applies with force and counsels against
interpreting CERCLA to provide a cause of action to foreign
claimants such as the appellants. Aramco, 499 U.S. at 258.
B. No Statutory Coverage of Clark and Subic When the
Appellants Filed Suit
[4] We also conclude that the appellants did not state a
claim when they filed their case because, at that time, Clark
and Subic had already been under the exclusive control of a
foreign sovereign, the Philippines, for ten years. Even if at its
inception CERCLA covered Clark and Subic, the relevant
inquiry is whether the appellants had a cause of action at the
time they commenced this litigation in 2002. It is uncontested
that the United States no longer has any control or possession
of Clark and Subic. We agree with the appellees’ concerns
that the United States has no “authority to conduct a prelimi-
nary assessment or a cleanup at Clark and Subic, which were
closed as military bases and returned to Philippine control in
1992.” We also agree with the appellees that without an inter-
governmental agreement between the United States and the
Philippine government, the United States no longer has
presumption against extraterritoriality. The appellants do not cite anything
in DERP, other than the previously noted language concerning geographic
scope, that in any way suggests that Congress intended to provide
preliminary-assessment and cleanup claims to foreign claimants. See Sale
v. Haitian Ctrs. Council, 509 U.S. 155, 188 (1993) (reasoning that the
“presumption [against extraterritoriality] has special force when . . . con-
struing . . . statutory provisions that may involve foreign and military
affairs for which the President has unique responsibility”).
7080 ARC ECOLOGY v. USAF
authority to address any alleged contamination present on or
around Clark and Subic.
It would be unreasonable for this court to find that, in
enacting CERCLA, Congress intended for the President to
undertake preliminary assessments or cleanups on foreign soil
absent some agreement with the foreign government. Such a
holding would impermissibly encroach on the Executive’s
foreign affairs authority. See Am. Ins. Ass’n v. Garamendi,
539 U.S. 396 (2003) (observing that the Constitution allocates
the foreign relations power to the federal executive); see also
Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333
U.S. 103, 109 (1948) (noting the President’s role as the
“[n]ation’s organ in foreign affairs”). Certainly, nothing in
CERCLA requires such action.4
C. Expressio Unius Est Exclusio Alterius
[5] The appellants’ attempt to state a claim under CERCLA
is further defeated by the fact that CERCLA expressly autho-
rizes some actions by a narrow class of foreign claimants,
which does not include the appellants:
Foreign Claimants. To the extent that the provi-
sions of this chapter permit, a foreign claimant may
assert a claim to the same extent that a United States
claimant may assert a claim if — (1) the release . . .
occurred (A) in the navigable waters or (B) in or on
the territorial sea or adjacent shoreline of a foreign
country of which the claimant is a resident; (2) the
claimant is not otherwise compensated for his loss;
4
The provision in CERCLA concerning foreign claimants, 42 U.S.C.
§ 9611(l), recognizes these limitations as it restricts recovery by foreign
claimants to instances where such relief is authorized by treaty, executive
agreement, or where the Secretary of State certifies that the foreign claim-
ant’s country provides a reciprocal remedy to U.S. citizens. See Part II.C,
supra.
ARC ECOLOGY v. USAF 7081
(3) the hazardous substance was released from a
facility or from a vessel located adjacent to or within
the navigable waters or was discharged in connec-
tion with activities conducted under the Outer Conti-
nental Shelf Lands Act . . . or the Deepwater Port
Act . . . ; and (4) recovery is authorized by a treaty
or an executive agreement between the United States
and foreign country involved, or if the Secretary of
State, in consultation with the Attorney General and
other appropriate officials, certifies that such country
provides a comparable remedy for United States
claimants.
42 U.S.C. § 9611(l). The appellants do not meet the require-
ments of this passage.5 Indeed, they allege releases of hazard-
ous substances or pollutants occurring on the Clark and Subic
facilities and not, as the statute requires, in the navigable
waters, territorial sea, or adjacent shoreline of a foreign coun-
try. 42 U.S.C. § 9611(l)(1). More importantly, the appellants
do not allege that their suit is authorized by a “treaty or an
executive agreement” between the United States and the Phil-
ippines or that the Secretary of State has certified that the
government of the Philippines provides a comparable remedy
for American claimants. Id. § 9611(l)(4).
[6] Reinforcing this barrier to asserting a claim is the doc-
trine of expressio unius est exclusio alterius, which teaches
that omissions are the equivalent of exclusions when a statute
affirmatively designates certain persons, things, or manners of
operation. Boudette v. Barnette, 923 F.2d 754, 756-57 (9th
Cir. 1990); In re McLinn, 744 F.2d 677, 683 (9th Cir. 1984).
5
We recognize that the appellants seek equitable relief and that section
9611(l) applies only to actions looking to recover money from the Super-
fund. See 42 U.S.C. § 9601(5) (defining “claimant” as “any person who
presents a claim for compensation under this chapter”). We discuss section
9611(l), however, not because it directly controls the appellants’ case, but
because it shows that Congress specifically provided for relief for certain
claims by foreign claimants, which do not include the appellants.
7082 ARC ECOLOGY v. USAF
Applying this doctrine to CERCLA bolsters the conclusion
that only foreign claimants satisfying section 9611(l)’s
express requirements may proceed to court under CERCLA.
Id.; 42 U.S.C. § 9611(l).
This conclusion is further supported by the fact that Con-
gress has provided other avenues for foreign claimants to seek
relief, which the appellants have not explored. For example,
Congress has established the Foreign Claims Act for compen-
sating any “inhabitant of a foreign country” for property loss,
personal injury, or death incident to noncombat activities of
U.S. armed forces occurring outside the United States. 10
U.S.C. § 2734(a). This statute illustrates the principle that
when Congress seeks to legislate with extraterritorial effect,
it does so with unmistakable intent.
D. Other Provisions Demonstrate That the Appellants
Have No Claim Under CERCLA
[7] When considering other provisions of CERCLA, we
find that the statute’s general approach, concerns, and proce-
dures are inimical to judicial challenges to contamination
alleged from sites outside the territorial boundaries of the
United States. See United States v. Bonilla-Montenegro, 331
F.3d 1047, 1051 (9th Cir. 2003) (avoiding “a statutory con-
struction that would render another part of the same statute
superfluous”); see also Hughes Air Corp. v. Pub. Utilities
Comm’n, 644 F.2d 1334, 1338 (9th Cir. 1981) (adhering to
the “basic rule of statutory construction [ ] that one provision
should not be interpreted in a way which is internally contra-
dictory or that renders other provisions of the same statute
inconsistent or meaningless”). For instance, CERCLA
requires the President to “consult with the affected State or
States” before determining appropriate remedial action. 42
U.S.C. § 9604(c)(2). No analogous provision requires consul-
tation with foreign authorities. Similarly, the President cannot
provide remedial actions “unless the State in which the
release occurs first enters into a contract or cooperative agree-
ARC ECOLOGY v. USAF 7083
ment” with the United States. Id. § 9604(c)(3). The statute
does not contemplate like arrangements with foreign coun-
tries.
In addition, CERCLA’s citizen-suit provision states that a
case “shall be brought in the district court for the district in
which the alleged violation occurred.” Id. § 9659(b)(1). The
statute, however, does not prescribe venue for citizen suits
involving alleged violations in foreign countries.6 See Smith,
507 U.S. at 202-03 (noting that Congress does not intention-
ally “create venue gaps” that “take away with one hand what
Congress has given by way of jurisdictional grant with the
other”); see also Aramco, 499 U.S. at 256 (reasoning that a
statute’s venue provisions are “ill-suited for extraterritorial
application” when they provide for venue only in the “judicial
district in the State where certain matters . . . occurred or were
located”).
[8] Similarly, there is no provision in CERCLA that pro-
vides authority to place any foreign site on the National Prior-
ities List, and, consequently, no foreign site appears on that
list.7 42 U.S.C. § 9605(a)(8)(B); 40 C.F.R. § 300.425(b).
Because the statute authorizes the President to rank the sub-
jects of a preliminary assessment in a system that applies
exclusively to releases in the United States, the necessary con-
clusion is that Congress did not intend for CERCLA to
6
On a related note, no citizen suit may be commenced under CERCLA
until 60 days after the plaintiff has given notice of the alleged violation to,
among others, “[t]he State in which the alleged violation occurs.” 42
U.S.C. § 9659(d)(1) (emphasis added). Had Congress intended CER-
CLA’s citizen-suit provision to extend to foreign lands, it would have pro-
vided a pre-filing notice for cases that allege releases occurring abroad.
7
Placement of a site on the list makes the site eligible for remedial
action through the expenditure of money from the Superfund, a fund
established by CERLCA and financed through a combination of appropri-
ations, EPA fees, and industry taxes. 42 U.S.C. § 9605; United States v.
Hercules, Inc., 247 F.3d 706, 715 (8th Cir. 2001).
7084 ARC ECOLOGY v. USAF
encompass the appellants’ claims. 42 U.S.C. § 9605(a)(8)(A),
(d).
E. Legislative History and Academic Commentary
[9] We have not been cited to any aspect of CERCLA’s
legislative history that supports the recognition of a claim for
alleged contamination of a site outside of the United States.
The legislative history recited by the district court indicates
that Congress intended for CERCLA to have a domestic
focus. For example, a House committee report noted, just
prior to CERCLA’s re-authorization, that “there may be as
many as 10,000 [ ] sites across the Nation,” and that the fed-
eral government’s allocation of resources was inadequate to
“fulfill promises that were made to clean up abandoned haz-
ardous wastes in this country.” H.R. Rep. No. 99-253, pt. 1,
at 55, reprinted in 1986 U.S.C.C.A.N. 2835, 2837 (emphasis
added). Because the congressional record is silent as to any
extraterritorial application of CERCLA, it is unlikely that
Congress intended for CERCLA to provide relief to the appel-
lants. See Small, 125 S. Ct. at 1757 (“[T]hose who use legisla-
tive history to help discern congressional intent will see the
history here as silent, hence a neutral factor, that simply con-
firms the obvious, namely, that Congress did not consider the
issue.”); see also Edmonds v. Compagnie Generale Transa-
tlantique, 443 U.S. 256, 266-67 (1979) (“This silence is most
eloquent, for such reticence while contemplating an important
and controversial change in existing law is unlikely.”).
[10] We also note that the available academic commentary
on the scope of CERCLA’s application unanimously agrees
that Congress did not intend for CERCLA to apply in the
manner sought by the appellants. For example, one commen-
tator observes, “citizen suits by aliens rest on a slim founda-
tion. Even if allowed, such lawsuits would be limited to
conduct occurring within the U.S. . . .” Lisa T. Belenky, Cra-
dle to Border: U.S. Hazardous Waste Export Regulations and
International Law, 17 BERKELEY J. INT’L L. 95, 135 (1999);
ARC ECOLOGY v. USAF 7085
accord Peggy Rodgers Kalas, International Environmental
Dispute Resolution and the Need for Access by Non-state
Entities, 12 COLO. J. INT’L ENVTL. L. & POL’Y 191, 194
(2001); Jack I. Garvey, a New Evolution for Fast-tracking
Trade Agreements: Managing Environmental and Labor
Standards Through Extraterritorial Regulation, 5 UCLA J.
INT’L L. & FOR. AFF. 1, 39-40 (2000); Richard A. Wegman &
Harold G. Bailey, The Challenge of Cleaning Up Military
Wastes When U.S. Bases are Closed, 21 ECOLOGY L.Q. 865,
924-25 (1994).
III
Perhaps recognizing the tenuous nature of their claims
under domestic law, the appellants suggest that we should
interpret CERCLA to apply extraterritorially so as not to run
afoul of international law. The appellants rely on international
principles espousing the view that activities within a country’s
jurisdiction or control should not cause significant injury to
the environment of another country. The Restatement of For-
eign Relations Law of the United States appears to support
this view.8 RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW
OF THE UNITED STATES §§ 601-602 (1987).
8
The appellants concede that it is uncertain whether the sources of inter-
national law on which they rely provide accurate statements of interna-
tional law. However respectable the Restatement may be, it “is not a
primary source of authority upon which, standing alone, courts may rely
for propositions of customary international law.” United States v. Yousef,
327 F.3d 56, 99 (2d Cir. 2003) (emphasis omitted); see also C.L. Maddox,
Inc. v. Coalfield Servs., Inc., 51 F.3d 76, 81 (7th Cir. 1995) (“The Restate-
ment of course is not law.”). A court that has had occasion to consider
these sources determined that they are unreliable. Amlon Metals, Inc. v.
FMC Corp., 775 F. Supp. 668, 671 (S.D.N.Y. 1991). Indeed, the Restate-
ment’s own authors admit that “ ‘in a number of particulars the formula-
tions in this Restatement are at variance with positions that have been
taken by the United States Government.’ ” Yousef, 327 F.3d at 100 (quot-
ing RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED
STATES at ix (1987)).
7086 ARC ECOLOGY v. USAF
Even if we were to accept the appellants’ gloss on interna-
tional law — that one nation should not injure another
nation’s environment — it does not follow that denying the
appellants a cause of action as of 2002 violates international
law. The appellants offer no authority for the proposition that
international law recognizes a current claim for a preliminary
assessment or cleanup of Philippine territory based on actions
taken over a decade ago. Furthermore, assuming that the
United States “injured” the Philippines during its operation of
Clark and Subic, compensation presumably was or should
have been negotiated between the two nations when the
United States turned the bases over to the Philippines. Thus,
we do not find that the appellants have presented an actual
conflict between domestic and international law.
Finally, the appellants’ reliance on the Charming Betsy
canon of statutory construction is misplaced. In Murray v.
Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804), the
Supreme Court had to determine whether a ship could be
seized for violating an American embargo against France. Id.
at 115-18. The Court interpreted the relevant statute so as to
avoid embroiling the nation in a foreign policy dispute
unforeseen by either the President or Congress, holding that
“an act of Congress ought never to be construed to violate the
law of nations if any other possible construction remains.” Id.
at 118.
Charming Betsy is of no comfort to the appellants for at
least two reasons. First, as this court has observed, “the
Supreme Court has never invoked Charming Betsy against the
United States in a suit in which it was a party.” United States
v. Corey, 232 F.3d 1166, 1179 (9th Cir. 2000). The concerns
that underlie the canon are “obviously much less serious
where the interpretation arguably violating international law
is urged upon [the court] by the Executive Branch of our gov-
ernment.” Id. When the Executive Branch is the party advanc-
ing a construction of a statute with potential foreign policy
implications, we presume that “the President has evaluated
ARC ECOLOGY v. USAF 7087
the foreign policy consequences of such an exercise of U.S.
law and determined that it serves the interests of the United
States.” Id.
For this same reason, the canon plays no role in interpreting
the disputed provisions of CERCLA. Id. Moreover, accepting
the appellants’ broad interpretation of the statute would be the
equivalent of forcing the United States to encroach on the ter-
ritory and affairs of another sovereign. Such an interpretation
would make the judiciary the impetus for “ ‘unintended
clashes between our laws and those of other nations which
could result in international discord.’ ” Id. at 1169 (quoting
Aramco, 499 U.S. at 248). These are the exact ends that the
Charming Betsy canon seeks to bypass.
Second, the appellants offer no example of where a court
has invoked the Charming Betsy canon to extend the effect of
domestic legislation into another sovereign’s territory. Of
course, courts have held just the opposite. “[T]he practice of
using international law to limit the extraterritorial reach of
statutes is firmly established in our jurisprudence.” Hartford
Fire Ins. Co. v. California, 509 U.S. 764, 818 (Scalia, J., dis-
senting) (citing federal case law tempering the extraterritorial
application of federal statutes).
Charming Betsy itself concerned a private dispute, one
which the Court resolved by interpreting the relevant statute
so as to avoid embroiling our nation in a foreign policy dis-
pute unforeseen by either the President or Congress. See
Charming Betsy, 6 U.S. at 118. Rather than producing har-
mony with international laws, the appellants’ interpretation
that CERCLA applies to other countries may result in pre-
cisely what Charming Betsy seeks to avoid — intrusion on the
affairs of foreign sovereigns and international discord. See
United States v. Thomas, 893 F.2d 1066, 1069 (9th Cir. 1990)
(adhering to the Charming Betsy canon “out of respect for
other nations”) (citing Chua Han Mow v. United States, 730
F.2d 1308, 1311 (9th Cir. 1984)). As the Department of
7088 ARC ECOLOGY v. USAF
Defense recognizes through its own regulations, “[t]reaty
obligations and the sovereignty of other nations must be
respected, and restraint must be exercised in applying United
States laws within foreign nations unless Congress has
expressly provided otherwise.” 32 C.F.R. § 187.4(c). Consis-
tent with this perspective, we express no opinion as to what
steps, if any, the appellants might take in consulting with their
own government to achieve environmental remediation in the
region.
IV
[11] For the foregoing reasons, the district court correctly
determined that the appellants failed to state a proper claim
under CERCLA. The statutory presumption against extraterri-
toriality, far from being overcome here, is consistent with the
legislative purpose underlying CERCLA. The appellants can-
not state a claim because there is no evidence that Congress
intended for CERCLA to provide relief to foreign claimants
such as the appellants and CERCLA did not apply to Clark
and Subic when the appellants filed their action in 2002. Our
determination that the appellants cannot state a cognizable
claim is also consistent with other provisions of CERCLA, its
legislative history, and the available academic commentary on
the statute’s extraterritorial application. Finally, the appel-
lants’ invocation of Charming Betsy is inapposite as we per-
ceive no real conflict between international law and our
determination. Accordingly, the decision of the district court
is AFFIRMED.