Wickland Oil Terminals, a California Corporation v. Asarco, Inc., a New Jersey Corporation, and State Lands Commission of California

Wickland Oil Terminals (Wickland) appeals from a judgment dismissing its claims for damages and for declaratory and injunctive relief against Asarco, Inc. (Asarco) for failure to state a claim upon which relief could be granted. The central question on appeal is whether a governmentally authorized cleanup program is a prerequisite to a private action under section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9607 (a). Wickland also appeals from a judgment in favor of the State Lands Commission of California (the Commission) on Wickland’s claim for declaratory relief. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We reverse the dismissal of Wickland’s claims against Asarco and remand the case, and we dismiss Wickland’s appeal against the Commission for lack of jurisdiction.

I

Wickland’s complaint advises us that from approximately 1886 through 1970, Asarco conducted smelting operations for the extraction of lead, zinc, and other metals on two contiguous parcels of land in Selby, California (the Selby site). Asarco owned one of the parcels. It occupied the other parcel under license until 1951, when the…