This is a retransmission basically to attach the subject
heading that I left out of the first transmission
Daily Development for Tuesday, March 28, 1995
By: Patrick A.
Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu
HAZARDOUS SUBSTANCES; CERCLA; OWNER OR OPERATOR LIABILITY; EASEMENTS: Holders of a pipeline easement burdening property contaminated by a hazardous waste facility are not liable for cleanup costs as "owners" or "operators" of the facility when the pipeline was not a factor in the pollution. Long Beach Unified School District v. Godwin Living Trust, 32 F.3d 1364 (9th Cir., 1994). The holder of an easement burdening land which contained a hazardous waste facility was, by virtue of that interest alone, not liable for cleanup costs as an owner or operator under CERCLA. Using the common law definition of "ownership," the court determined that the easement holder was not the "owner" of the property burdened by the easement, but rather only the holder of a right to use land owned by someone else. In addition, although the holder of an easement could be an operator under CERCLA, because pipelines can be a "facility" under CERCLA, in this case the pipelines were not directly involved in the environmental issue and the defendant did not play any role in running the polluted facility or participating in its management.
Comment: Cases like
this may lead some lawyers to counsel their clients to take easements rather
than title in cases in which title is not critical. Remember that exclusive easemenst may function almost the same as
title interests if the purpose of the easement is so comprehensive that the
servient owner has few rights to intrude on the land. There is always a danger
that the court will "recharacterize" the claimed easement as a fee interest, but isn't it worth the
try?
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