Shoot Out at the Otay Corral

LexisNexis Insurance Law Blog

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PUBLISHED ON: July 31, 2009

Shooting ranges may pose hazards to humans or the environment from lead in discharged munitions. A recent U.S. Court of Appeals for the Ninth Circuit opinion, however, dismissed a property owner’s claims seeking lead-related clean-up costs as unripe. Current property owners in Otay Land Company v. United Enterprises Ltd., 2009 U.S. App. LEXIS 16294 alleged that the former owners/operators of a shooting range were responsible under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) and the Resource Conservation and Recovery Act (RCRA) for costs of removing lead and other pollutants deposited on the land.

The court held otherwise relying on several prior cases. However, the Chief Judge dissented arguing that the plaintiff should at least have “a chance to present evidence.” In reaching its holding the majority relied on the following: “Private parties have the burden of proving that cleanup costs associated with remedial actions are consistent with the National Contingency Plan to recover those cleanup costs under CERCLA.” Carson Harbor Vill., Ltd. v. County of L.A., 433 F.3d 1260, 1265 (9th Cir. 2006).

Read the full article: Shoot Out at the Otay Corral