August 18, 1992
_________________________
No. 91-2116
DEDHAM WATER CO., INC., ET AL.,
Plaintiffs, Appellants,
v.
CUMBERLAND FARMS DAIRY, INC.,
Defendant, Appellee.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Walter Jay Skinner, U.S. District Judge]
___________________
_________________________
Before
Selya, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Pettine,* Senior District Judge.
_____________________
_________________________
Thomas F. Holt, Jr., with whom Gerald P. Tishler, Franklin
____________________ __________________ ________
G. Stearns, Laurel A. Mackay, and Brown, Rudnick, Freed & Gesmer,
__________ ________________ _______________________________
P.C., were on brief, for appellants.
____
Allan van Gestel, with whom Christopher P. Davis, A. Lauren
________________ _____________________ _________
Carpenter, and Goodwin, Procter & Hoar, were on brief, for
_________ __________________________
appellee.
_________________________
_________________________
_______________
*Of the District of Rhode Island, sitting by designation.
SELYA, Circuit Judge. This appeal represents the final
SELYA, Circuit Judge.
_____________
voyage of a case that has persisted in the federal courts for
nearly a decade. Finding, as we do, that the judgment below is
fully supportable, we affirm.
I. BACKGROUND
I. BACKGROUND
Because these waters have been so thoroughly charted,
we merely sketch the background insofar as is necessary to set
this appeal and the underlying litigation into perspective.
A
A
Plaintiff-appellant Dedham-Westwood Water District
(which, together with its predecessor in interest, Dedham Water
Company, we shall call "Dedham") is a regulated public utility.
It supplies drinking water to some 40,000 persons who reside in
the Massachusetts towns of Dedham and Westwood. One source of
this water is the White Lodge Well Field. The well field lies in
an industrial park along the west bank of the Neponset River.
Defendant-appellee Cumberland Farms Dairy, Inc. ("Cumberland")
operates a truck maintenance facility on the river's east bank.
In March 1979, Dedham discovered that two wells were
contaminated with volatile organic chemicals (VOCs). It removed
the wells from service, contacted the Massachusetts Department of
Environmental Quality Engineering (DEQE), sought alternative
water supplies, and began a somewhat haphazard investigation
aimed at fixing responsibility for the pollution. This
investigation included a series of surface-water tests.
2
In June 1979, Dedham began to pump the contaminated
wells to waste. Shortly thereafter, it hired two consultants,
Calgon Corporation and Metcalf & Eddy, to assess treatment
alternatives. In early 1980, Dedham's governing board budgeted a
sum of money to pay Metcalf & Eddy for designing a two-stage
treatment plant that would deal with both the VOC problem and a
separate water-quality issue. In July 1981, Dedham submitted
plans for the treatment plant to DEQE. Before year's end, Dedham
publicly announced that it would build the treatment plant at
White Lodge.
A few months prior to this announcement, a Dedham
employee discovered VOCs in a drainage ditch running from
Cumberland's property. Dedham promptly hired Geraghty & Miller
("G & M"), a firm specializing in hydrogeology, to investigate
the source of the contamination and determine the zone of
capture. In January 1982, a drawdown test conducted by G & M
established that the Neponset River was not a barrier to the flow
of contaminants; theoretically, contaminants could flow under the
river and into the well field. G & M proceeded to sink test
wells in and around the White Lodge field. In July of 1982, it
identified Cumberland as a likely source of pollutants. Three
months later, G & M reported that, in its opinion, Cumberland was
the major cause of the White Lodge contamination.
The G & M report heralded the start of the instant
litigation. Invoking the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C.
3
9601-9675 (1988), and its state-law counterpart, Mass. Gen. L.
Ch. 21E (1990 & Supp. 1991), Dedham sued Cumberland in federal
district court. It asserted claims for response costs incurred
as a result of actual and threatened contamination at the well
field.
As the suit plodded toward trial, the planned treatment
plant was slowed by zoning questions, neighbors' objections,
dissatisfaction on DEQE's part, and a gaggle of other roadblocks.
After appellant redesigned the plant to feature lower aerating
towers and better emission controls, these problems dissipated.
DEQE granted a permit. Construction began in 1985 and the
treatment plant went on line in early 1987.
Appellant's court case progressed more deliberately.
It took four full years to overcome a jurisdictional obstacle.1
When the case was finally tried, Dedham did not succeed in
proving that Cumberland was the source of the contamination. The
district court (Tauro, J.) entered judgment for the defendant.
Dedham Water Co. v. Cumberland Farms Dairy, Inc., 689 F. Supp.
_________________ _____________________________
1223 (D. Mass. 1988) ("First Trial Op."). Dedham appealed on the
_______________
basis of Judge Tauro's purported failure to examine an
alternative theory of liability under CERCLA and Chapter 21E,
viz., whether Cumberland, although not guilty of causing the
____________________
1After initially denying the defendant's motion to dismiss
on jurisdictional grounds, Dedham Water Co. v. Cumberland Farms
________________ ________________
Dairy, Inc., 588 F. Supp. 515 (D. Mass. 1983), the district court
___________
(McNaught, J.) changed direction and granted the motion. 643 F.
Supp. 667 (D. Mass. 1986). We reversed, holding that the
district court possessed subject matter jurisdiction. 805 F.2d
1074 (1st Cir. 1986).
4
discovered contamination, may nevertheless have posed an
actionable threat of future contamination, to which Dedham
responded in an objectively reasonable (if costly) manner. We
directed the district court to revisit this aspect of the matter.
Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146
________________ ____________________________
(1st Cir. 1989) ("Earlier Merits Appeal" or "EMA"). We also
______________________ ___
decided that a new trier should preside. See In re Dedham Water
___ ___________________
Co., 901 F.2d 3, 4-5 (1st Cir. 1990) (per curiam) (interpreting
___
D. Mass. Loc. R. 8(i)).
B
B
Before setting sail, we deem it imperative (a) to
delineate the narrow perimeters within which the further
proceedings on remand were to be conducted and (b) to report the
outcome of those proceedings. In the first trial, appellant was
unable to "prove[] that the contaminants released by Cumberland
Farms had migrated to the [White Lodge] wells." EMA, 889 F.2d at
___
1149. Dedham did not challenge this ruling on appeal. Hence,
the issue could not be resurrected during the second trial. From
that point forward, it had to be taken as gospel that Cumberland
"was not liable for the expenses incurred by Dedham . . . in
investigating the cause of the pollution to its wells and
rectifying [that pollution]." Id. The only issue that remained
___
open at the second trial was whether Cumberland's "releases (or
threatened releases) might nonetheless have caused the plaintiff
to incur 'response costs' even though those releases did not in
__
fact contaminate the wells." Id. at 1157 (emphasis in original).
____ ___
5
Phrased another way, the pre-remand proceedings
conclusively determined that Cumberland was not legally
responsible for contaminating the White Lodge well field.
Therefore, to the extent that appellant's activities e.g.,
retaining consultants, performing scientific studies, building
the treatment plant were in response to actual contamination,
______
Cumberland was home free. But, polluting substances that stopped
short of the well field's boundary could conceivably have caused
the appellant to incur expenses compensable under CERCLA. Id. at
___
1151-54, 1157-58. If, and to the extent that, Cumberland posed
such a threat, and Dedham acted in response thereto, Cumberland
might be held liable. Since the district court had neglected to
make a finding on this point, further proceedings were required.
The second trial was perforce limited to a resolution
of this issue and, if the district court found in appellant's
favor, an assessment of damages. The case was redrawn to Judge
Skinner. After taking additional testimony, he determined that
appellant had not incurred any response costs as a result of
releases, or the threat of releases, attributable to appellee.
Dedham Water Co. v. Cumberland Farms Dairy, Inc., 770 F. Supp. 41
________________ ____________________________
(D. Mass. 1991) ("Second Trial Op."). Dedham appeals. We
_________________
affirm.
II. APPLICABLE STANDARDS OF REVIEW
II. APPLICABLE STANDARDS OF REVIEW
When a district court makes findings of fact in a bench
trial, the clear-error standard pertains. See Fed. R. Civ. P.
___
52(a); see also Gopher Oil Co. v. Union Oil Co., 955 F.2d 519,
___ ____ ______________ _____________
6
526 (8th Cir. 1992) (clear-error standard applies to district
court's findings of fact in CERCLA cases). Consequently, the
court of appeals must defer in considerable measure to the nisi
prius court. Findings of fact will be given effect unless, after
reading the record with care and making due allowance for the
trier's superior ability to gauge credibility, the reviewing
court "form[s] a strong, unyielding belief that a mistake has
been made." Cumpiano v. Banco Santander Puerto Rico, 902 F.2d
________ ____________________________
148, 152 (1st Cir. 1990). In this process, equal respect is
afforded to the district court's evaluation of documentary and
testimonial evidence, Reliance Steel Prods. Co. v. National Fire
__________________________ _____________
Ins. Co., 880 F.2d 575, 576 (1st Cir. 1989); and, moreover, the
________
same high level of respect attaches whether "the conclusions of
the trial court depend on its election among conflicting facts or
its choice of which competing inferences to draw from undisputed
basic facts." Irons v. FBI, 811 F.2d 681, 684 (1st Cir. 1987).
_____ ___
As a general rule, causation questions are grist for
the factfinder's mill, see, e.g., Peckham v. Continental Cas.
___ ____ _______ ________________
Ins. Co., 895 F.2d 830, 837 (1st Cir. 1990), and thus, are within
________
the traditional scope of clear-error review. Where causation is
in issue, "[n]ot only ordinary fact questions, but also
'evaluative applications of legal standards . . . to the facts'
are properly [for the factfinder]." Springer v. Seaman, 821 F.2d
________ ______
871, 876 (1st Cir. 1987) (citations and footnote omitted). We
see nothing about the issue of causation in a CERCLA case that
would serve either to sidetrack these principles or to
7
reconfigure their application. See, e.g., United States v. R.W.
___ ____ _____________ ____
Meyer, Inc., 889 F.2d 1497, 1507 (6th Cir. 1989) (reviewing
____________
finding of causation in CERCLA case for clear error), cert.
_____
denied, 494 U.S. 1057 (1990).
______
In apparent recognition of the high hurdle that the
clear-error standard presents, appellant seeks to cast the
district court's decision in a more malleable medium. Although
appellant reserves the claim that clear error was committed, see
___
infra Part IV, it spends most of its energies attempting to
_____
convince us that the court below applied an incorrect legal
standard. See infra Part III. If this position is viable and
___ _____
that is a large "IF," best written in capital letters it
improves appellant's chances in two ways. First, unlike findings
of fact, errors of law are subject to plenary review. Second, to
the extent that findings of fact can be shown to have been
predicated upon, or induced by, errors of law, they will be
accorded diminished respect on appeal. See RCI Northeast Servs.
___ ____________________
Div. v. Boston Edison Co., 822 F.2d 199, 203 (1st Cir. 1987).
____ _________________
III. THE MISTAKE-OF-LAW THESIS
III. THE MISTAKE-OF-LAW THESIS
In an effort to put some flesh on the bare bones of its
mistake-of-law thesis, appellant develops two criticisms of the
judgment below. One criticism is relatively general; the other
is relatively specific. The gist of the broader criticism is
that the district court erroneously factored a subjective
component into the calculus of decision by considering what
8
Dedham actually knew (or believed) about a threat of potential
harm and when Dedham actually acquired such knowledge. The more
particularized criticism suggests that, regardless of whether a
subjective component could properly be considered, the trial
court's conception of the legal standard was faulty because it
slavishly embraced a temporal standard, requiring that appellant
prove it had identified Cumberland as the source of threatened
releases before it incurred the costs for which recovery was
sought.
We examine these contentions seriatim. In concluding
________
this section of our opinion, we also discuss a fallback position
that appellant visualizes as an anchor to windward.
A
A
We begin with appellant's insistence that any inquiry
into its institutional state of mind was erroneous because the
only legitimate question before the district court was whether,
objectively viewed, Cumberland posed a threat that warranted
responsive action. There is a gaping hole in the fabric of this
construct.
Appellant's theory at the second trial, as expressed in
its pleadings, evidence, and trial memoranda, hinged upon
precisely the mixed subjective/objective approach it now reviles.
Nothing could make this point clearer than a reading of the
closing argument given by Dedham's counsel in the district court
a summation that focused squarely on "what did they know and
when did they know it?" Indeed, appellant conceded in closing
9
argument that "[t]o the extent there was no idea of the
activities on Cumberland Farms up to April of 1979 . . . costs
[incurred prior thereto] could be fairly excluded as having been
incurred in response to a contamination."
If the district court's view of the law was in error
and we do not suggest that it was Dedham must bear its fair
share of responsibility for leading the court down a garden path.
A litigant who attempts to sell a particular view of the law to
the trial court cannot later appeal on the ground that the court
bought the litigant's wares. See Austin v. Unarco Indus., Inc.,
___ ______ ___________________
705 F.2d 1, 15 (1st Cir.) ("in general, a party may not appeal
from an error to which he contributed, either by failing to
object or by affirmatively presenting to the court the wrong
law"), cert. dismissed, 463 U.S. 1247 (1983); McPhail v.
_____ _________ _______
Municipality of Culebra, 598 F.2d 603, 607 (1st Cir. 1979) ("A
________________________
party may not 'sandbag' his case by presenting one theory to the
trial court and then arguing for another on appeal.").
Moreover, we think that appellant's failure to
articulate the subjective/objective dichotomy in the district
court was particularly egregious under the circumstances of this
case. Our opinion in the earlier merits appeal strongly
suggested that Dedham's institutional state of mind was relevant
to the issue of whether the costs it incurred were threat-related
and/or recoverable against Cumberland on that basis.2 See,
___
____________________
2In its constituent terms, the earlier panel opinion
seemingly contemplated a bipartite test to determine whether a
threatened release caused a plaintiff to incur compensable
10
e.g., EMA, 889 F.2d at 1157 (observing that "[a] plaintiff . . .
____ ___
under certain circumstances might reasonably think that a
particular release would prove likely to contaminate his wells");
id. at 1158 (implying that if, objectively, a defendant's
___
releases pose a threat, a subjective fear of contamination,
reasonably held, can then establish a defendant's liability for
response costs incurred by the plaintiff).
To be sure, these statements are obiter dictum, that
______ ______
is, observations relevant, but not essential, to the
determination of the legal questions then before the court.
Dictum constitutes neither the law of the case nor the stuff of
binding precedent. See Great Lakes Dredge & Dock Co. v. Tanker
___ ______________________________ ______
Robert Watt Miller, 957 F.2d 1575, 1578 (11th Cir. 1992); Milgard
__________________ _______
Tempering, Inc. v. Selas Corp., 902 F.2d 703, 715-16 (9th Cir.
________________ ___________
1990). In short, dictum contained in an appellate court's
opinion has no preclusive effect in subsequent proceedings in the
same, or any other, case.
Be that as it may, courts often, quite properly, give
considerable weight to dictum particularly to dictum that seems
considered as opposed to casual. See, e.g., McCoy v.
___ ____ _____
____________________
response costs. A plaintiff would first have to prove that it
possessed a good-faith belief that some action was desirable in
order to address a particular environmental threat. The
plaintiff would then have to demonstrate that its response to the
perceived threat was objectively reasonable. See, e.g., EMA, 889
___ ____ ___
F.2d at 1157-58. This position fits comfortably both with the
thrust of CERCLA, see 42 U.S.C. 9607(a), and with the case law.
___
See, e.g., Amland Properties Corp. v. Aluminum Co. of America,
___ ____ ________________________ ________________________
711 F. Supp. 784, 795 (D.N.J. 1989); Artesian Water Co. v. New
__________________ ___
Castle County, 659 F. Supp. 1269, 1282 (D. Del. 1987), aff'd, 851
_____________ _____
F.2d 643 (3d Cir. 1988).
11
Massachusetts Inst. of Technology, 950 F.2d 13, 19 (1st Cir.
__________________________________
1991) (court of appeals should ordinarily respect considered
Supreme Court dicta) (citing authorities), cert. denied, 112 S.
_____ ______
Ct. 1939 (1992); Posadas de Puerto Rico Assocs., Inc. v.
_________________________________________
Asociacion de Empleados, Etc., 873 F.2d 479, 482 (1st Cir. 1989)
______________________________
(court of appeals should ordinarily respect considered dictum of
state's highest court on points of state law). When, as here,
the district court, on remand, purposed to act upon dicta
contained in the appeals court's earlier opinion in the same
case, and no one demurred, it is especially important that we toe
the mark and hold the parties to the usual consequence of invited
error. To do otherwise "would place a premium on agreeable
acquiescence to perceivable error as a weapon of appellate
advocacy." Merchant v. Ruhle, 740 F.2d 86, 92 (1st Cir. 1984).
________ _____
Then, too, because appellant's neoteric thesis was not
asserted below, it is procedurally defaulted. "It is hornbook
law that theories not raised squarely in the district court
cannot be surfaced for the first time on appeal." McCoy, 950
_____
F.2d at 22; accord, e.g., Boston Celtics Ltd. Partnership v.
______ ____ ________________________________
Shaw, 908 F.2d 1041, 1045 (1st Cir. 1990); Sanchez-Arroyo v.
____ ______________
Eastern Airlines, Inc., 835 F.2d 407, 408 (1st Cir. 1987);
_______________________
Clauson v. Smith, 823 F.2d 660, 666 (1st Cir. 1987). There is no
_______ _____
basis in the present record to relax the rule. After all,
"[l]itigants cannot try their case under one theory and then urge
a remand on appeal so it can be tried again under a different
theory." Johnson v. Allyn & Bacon, Inc., 731 F.2d 64, 73 (1st
_______ ____________________
12
Cir.), cert. denied, 469 U.S. 1018 (1984).
_____ ______
For these reasons, appellant's newly conceived
subjective/objective dichotomy does not assist its cause.
B
B
We turn now to appellant's more specific asseveration:
its claim that the district court erroneously required proof that
it identified Cumberland as the source of the threat prior to
incurring any response costs. This asseveration is belied by the
record.
The short of it is that the district court simply did
not embosom, or operate on, the premise that, in order to
prevail, Dedham must have identified Cumberland as the source of
threatened contamination before incurring response costs.
Rather, the district court found, wholly apart from the question
of identification, that the actions which appellant took were not
in response to approaching or threatened releases of any
description. See Second Trial Op., 770 F. Supp. at 42-43. Thus,
___ ________________
the court did not decide the point mechanically, based strictly
on whether identification preceded expenditure, but decided it on
a much different basis: that appellant was not responding to a
perceived threat, wheresoever originating, when it set its
course, but was responding instead to the need to rid its wells
of existing contamination. In other words, appellant's
construction of the treatment plant, its search for the sources
of the contamination, and its other response costs were
undertaken to define the magnitude of a known problem (actual
13
contamination), to rectify that problem and, relatedly, to fix
responsibility for it with an eye toward litigation not as an
environmental rejoinder to threatened releases of any kind.3
On this aspect of the case, appellant is tilting at
windmills. Its claim of legal error dissolves upon analysis of
the decision below and the record upon which that decision was
based. The district court did not require appellant, as a
condition precedent to recovery, to have identified the party
responsible for the threat before beginning to incur response
costs. Instead, the court's focus was exactly where it belonged
not on whether the chicken preceded the egg, or vice versa, but
on whether Cumberland somehow, or in some way, caused Dedham to
incur response costs.4 This was precisely the task we set in
____________________
3We have considered, and reject out of hand, appellant's
claim that, in addition to other enumerated response costs, it is
entitled to certain sums as "preliminary response costs."
Appellant's Brief at 45. It would serve no useful purpose to
recount the manifold flaws that bedevil this claim. For present
purposes, it suffices to say that, without an affirmative finding
of fact causally connecting these costs to a threat posed by
appellee, the claim is necessarily stillborn.
4Appellant also contends that the district court's
preoccupation with the chronology of events necessarily betokened
an infelicitous view of the law. This contention is sheer
persiflage. Appellant's initial response was clearly prompted
by, and addressed to, its discovery of actual contamination. The
court's point in considering the chronological sequence of
relevant events was to show that no substantive changes in the
response paradigm were made or considered even after a threat of
future releases could reasonably have been apprehended. This
tended to show that appellant's responses were, in their initial
formulation and ultimate enactment, responses to the actual, not
threatened, contamination. See, e.g., United States v. Sutton,
___ ____ ______________ ______
___ F.2d ___, ___ (1st Cir. 1992) (No. 91-1536, slip op. at 13)
("it is an accepted proposition, logically and legally, that
subsequent events may shed light upon, and be relevant in
determining, what transpired at an earlier time"); United States
_____________
14
remanding the case. See EMA, 889 F.2d at 1151-54, 1157-58.
___ ___
C
C
Dedham's fallback position is that the district court
committed legal error by failing to appreciate that, in this
case, the mere presence of actual contamination itself
______
constituted a threat causing Dedham to incur response costs for
which Cumberland was liable. This argument is entirely specious.
Appellant does not elucidate any plausible theorem as to how or
why Cumberland should be liable for response costs expended to
deal with threats signalled by actual contamination when
Cumberland, during the first trial, was fully exonerated from
legal responsibility for that contamination. See EMA, 889 F.2d
___ ___
at 1149; First Trial Op., 689 F. Supp. at 1235.
_______________
At any rate, appellant's plaint boils down to little
more than thinly veiled dissatisfaction with the district court's
factual findings. It neither demonstrates an error of law (as
opposed to a disagreement over the facts) nor raises a question
of jurisprudence sufficient to call the legal underpinnings of
the court's factbound findings into legitimate question. That
ends the matter. "The 'clearly erroneous' rule cannot be evaded
by the simple expedient of creative relabelling." Reliance
________
Steel, 880 F.2d at 577. Hence, we decline appellant's invitation
_____
that we play what amounts to a game of charades.
IV. THE MERITS
IV. THE MERITS
We come, then, to the ultimate question: were Judge
____________________
v. Mena, 933 F.2d 19, 25 n.5 (1st Cir. 1991) (similar).
____
15
Skinner's findings of fact at the second bench trial clearly
erroneous? Appellant urges us to answer this question in the
affirmative, asserting that the court erred grievously in certain
key respects. We are unconvinced.
A
A
On the merits, appellant's foray implicates the core of
the district court's decision. The court found that appellant
only became aware that Cumberland may have released VOCs (and,
thus, only became aware of the problem posed by a threat, as
contrasted to the problem posed by actual contamination) in 1981.
Second Trial Op., 770 F. Supp. at 42. In consequence, the court
_________________
found that appellant could not have begun responding to a threat
before that time well after the treatment plant had been
designed and appellant's overall response paradigm had been
formulated. Hence, appellant did not incur any costs to guard
against threats of future harm. We believe these findings are
supportable.
The district court's characterization of the big-ticket
item the treatment plant as a response to actual
contamination, rather than to threats, is completely plausible.
That this expenditure, and appellant's other responses, were not
undertaken to deal with threats is strikingly apparent from
appellant's actions or, more appropriately put, its inaction
in and after 1982, when it incorrectly identified Cumberland as
the chief culprit in respect to the existing contamination.
Despite the identification and the fact that Cumberland's
16
facility remained in operation, Dedham changed nothing of
substance in its response paradigm. To cite but a few examples,
there was no evidence that the new information was considered in
making the final design decisions for the treatment plant or that
the plant design was altered in any material way.5 See Second
___ ______
Trial Op., 770 F. Supp. at 42 ("The two-stage treatment plant
_________
recommended by Metcalf & Eddy in 1980 is substantially what was
built."). Appellant's own documents state that it retained
consultants to search for the sources of the pollution, not to
assuage a threat of future harm, but exclusively in order to
"recover damages from the polluters, if they can be identified."
Such litigation-related expenses are, of course, not compensable
as response costs incurred by private parties under CERCLA 107.
See, e.g., Leonard Partnership v. Town of Chenango, 779 F. Supp.
___ ____ ___________________ ________________
223, 229-30 (N.D.N.Y. 1991); Cook v. Rockwell Int'l Corp., 755 F.
____ ____________________
Supp. 1468, 1476 (D. Colo. 1991); Regan v. Cherry Corp., 706 F.
_____ _____________
Supp. 145, 149 (D.R.I. 1989).
Although we choose to eschew a complete litany of the
evidence underbracing the disputed finding, we deem three other
points worthy of mention. (1) The record strongly suggests that
G & M's tests and reports, the earliest of which took place in
1982, provided the first credible basis for recognizing that
____________________
5The record demonstrates beyond cavil that the changes
actually made in the design of the treatment plant, e.g.,
lowering the height of the aerating towers and providing more
sophisticated emission controls, were effectuated in order to
palliate abutters' objections and accommodate DEQE requests.
Those modifications had no relation whatever to the perception
that Cumberland posed an environmental threat.
17
Cumberland-spawned contaminants could pose a threat to Dedham.
(2) Insofar as the record reveals, Dedham never acted to follow
up its consultants' recommendations for additional tests that
would have served, among other things, to determine an
appropriate response to threatened releases and threatened
contamination. (3) The district court's subsidiary findings in
connection with the issue of causation, such as its finding that
appellant's decision to build the treatment plant was merely a
response to the actual contamination of its well field and not in
any way a response to a threat of events yet to come, were based
largely upon assessments of witness credibility. Such
assessments deserve substantial respect. See Anthony v. Sundlun,
___ _______ _______
952 F.2d 603, 606 (1st Cir. 1991) (an appellate court "ought not
to disturb supportable findings, based on witness credibility,
made by a trial judge who has seen and heard the witnesses at
first hand"); accord Anderson v. City of Bessemer City, 470 U.S.
______ ________ _____________________
564, 575 (1985); Scarpa v. Murphy, 806 F.2d 326, 328 (1st Cir.
______ ______
1986). In this tangled case, we see no valid reason why we
should second-guess the trier's on-the-spot determinations anent
the credibility of the parties' witnesses.
B
B
In the face of this substantial support for the trial
court's findings on the core issue, appellant tells us that the
findings are nevertheless undermined because the court was bound
to conclude that appellant knew of the "Cumberland problem" in
1979. Appellant's tale has three foci. We consider them
18
sequentially.
1.
1.
__
Appellant places great weight on surface-water testing
done in 1979. However, the evidence reflects a legitimate
question about whether the testing was conducted in sufficient
proximity to Cumberland's property to alert appellant at that
early date to the possibility of a threat emanating from
Cumberland's facility (or, indeed, the possibility of any threat
at all, wheresoever originating). Moreover, the district court
received evidence, both testimonial and documentary, indicating
that, even after conducting the 1979 tests, appellant complained
to DEQE about the agency's failure to locate the source of the
contamination. In these, and other, ways, the record supports
conflicting inferences about (a) when appellant first became
threat-conscious and (b) when its suspicions first focused on
Cumberland.
Appellant asserts that any amphiboly in the record was
clarified by the testimony of its witnesses, George Johnstone and
Gregory Grimes. Johnstone, a member of Dedham's senior
management team, testified as to Dedham's intent. Contrary to
appellant's importunings, we do not believe that the trial court
was compelled to accept Johnstone's self-interested testimony.
See Anthony, 952 F.2d at 606 ("what an actor says is not
___ _______
conclusive on a state-of-mind issue"). Grimes, Dedham's
production superintendent, testified that he found sixteen parts
per billion of 1, 1, 1 trichloroethane in a surface-water
19
sample taken in 1979 from a stream some distance below
Cumberland's property. Leaving to one side the fact that the
sample was taken several hundred feet away from Cumberland's
property, neither Grimes nor any other witness testified that
this discovery led Dedham to believe, in 1979 or 1980, that
contaminants had been released in the course of Cumberland's
operations.
We will not churn the waters. When the evidence
supports conflicting inferences, the district court's choice from
among the several inferences cannot be clearly erroneous. See
___
Anderson, 470 U.S. at 574; Jackson v. Harvard Univ., 900 F.2d
________ _______ ______________
464, 466 (1st Cir.), cert. denied, 111 S. Ct. 137 (1990); Keyes
_____ ______ _____
v. Secretary of the Navy, 853 F.2d 1016, 1020 (1st Cir. 1988).
______________________
This is such a case.
2.
2.
__
The next arrow in appellant's quiver consists of a
stipulation entered prior to the first trial. Appellant reads
this stipulation as containing an admission by Cumberland that
appellant's testing of runoff from Cumberland's land showed the
presence of VOCs in 1979 or thereabouts. The fly in the ointment
is that the district court did not accept either appellant's
interpretation of the stipulation or the inference appellant drew
therefrom. We discern no error.
It is apodictic that a stipulation should be read with
an eye toward effectuating the parties' manifested intentions.
See Washington Hosp. v. White, 889 F.2d 1294, 1299 (3d Cir.
___ _________________ _____
20
1989); Wo Co. v. Benjamin Franklin Corp., 562 F.2d 1339, 1344
______ ________________________
(1st Cir. 1977). The stipulation to which appellant alludes,
fairly read, represents no more than the parties' agreement about
the provenance and results of certain chemical tests.6 It
requires a forced reading to interpret the stipulation's
descriptions of the locations from which the test samples were
taken as an admission concerning what Dedham knew and when it
appreciated the implications of facts within its ken.
Because the stipulation at most faintly suggests,
rather than compels, appellant's interpretation, the district
court's refusal to accord it decretory significance cannot be
faulted. After all, "ambiguous provisions in [a] stipulation
must be interpreted by the factfinder, here the district court,
as an initial matter." Washington Hosp., 889 F.2d at 1299.
________________
3.
3.
__
Appellant's third argument seizes upon a sentence in
our opinion disposing of the earlier merits appeal. There, Judge
Bownes wrote: "Based upon a survey it made of the surrounding
surface waters, Dedham Water believed [in 1979] that Cumberland
Farms was the source of the contamination of White Lodge Wells #3
and #4." EMA, 889 F.2d at 1148. Appellant asserts that this
___
statement constitutes a finding which the district court was not
____________________
6The stipulation in question, entitled "Stipulation as to
the Admissibility of Certain Test Results," provided that the
chemical analyses of water samples taken from various parts of
Cumberland Farms' land, as well as from a variety of nearby wells
and waterways, shall be admissible "in lieu of other testimonial
or documentary evidence." It is too cumbersome to reproduce
verbatim here.
21
at liberty to ignore. We disagree. The statement which
appears only in a section of the panel opinion entitled
"BACKGROUND" does not reflect an adjudication of fact by the
EMA panel.7
___
It is elementary that the "law of the case" doctrine,
upon which appellant relies, ordinarily applies to matters of
law, not to matters of evidence. See, e.g., Gospel Army v. Los
___ ____ ___________ ___
Angeles, 331 U.S. 543, 548 (1947). The quoted sentence does not
_______
fit in that category. Taken in context, the sentence was a
passing reference to a matter not then in issue rather than a
considered response to a zoetic question of law. Even a cursory
reading of the panel's opinion adequately evinces that its
recital of the factual background was undertaken simply to set
the stage for understanding the legal issues thereafter discussed
and decided in the appeal.
To be sure, in a very select class of cases, the court
of appeals may actually find facts and the facts so found may
come under the law-of-the-case umbrella. See Heathcoat v. Potts,
___ _________ _____
905 F.2d 367, 370 (11th Cir. 1990). The statement relied upon by
appellant is not within the narrow confines of this select class.
Absent special circumstances, not present here, appellate
factfinding is permissible only when no other resolution of a
____________________
7Affirming findings of fact is, of course, a staple of the
appellate function. That aspect of our work is not implicated in
this situation. Appellant does not suggest that the quoted
sentence was drawn from, or based upon, any finding of fact made
by Judge Tauro in the first trial. Furthermore, our review of
the record confirms the absence of any such correlation.
22
factbound question would, on the compiled record, be sustainable.
See, e.g., LaRoche v. United States, 779 F.2d 1372, 1377 (8th
___ ____ _______ ______________
Cir. 1985); In re Southern States Motor Inns, Inc., 709 F.2d 647,
______________________________________
653 n.11 (11th Cir. 1983), cert. denied, 465 U.S. 1022 (1984);
_____ ______
Patterson v. Greenwood School Dist. 50, 696 F.2d 293, 295 (4th
_________ __________________________
Cir. 1982). The question of what Dedham knew and believed in
1979 does not come close to meeting so rigorous a criterion.
Because the factual issue to which appellant gestures
was merely discussed, not decided, in the earlier appeal, the
district court was not bound to accept the proposition. See
___
Schultz v. Onan Corp., 737 F.2d 339, 345 (3d Cir. 1984) ("law of
_______ __________
the case" doctrine only applies to issues actually decided or
decided by necessary implication); Riley v. MEBA Pension Trust,
_____ __________________
586 F.2d 968, 970 (2d Cir. 1978) (a court need not adopt as "law
of the case" a proposition that was merely assumed, rather than
decided, in a prior appeal); cf. cases supra p.11 (discussing
___ _____
non-binding nature of dictum in judicial opinions).
C
C
In a slightly different vein, appellant raises another
set of issues which, directly or indirectly, constitute an
assault upon the legal standard of causation set out in our
opinion resolving the earlier merits appeal. We are not free to
reconsider that standard, even if we were inclined to do so. See
___
Fournier v. Best Western Treasure Island Resort, 962 F.2d 126,
________ ____________________________________
127 (1st Cir. 1992) (in a multi-panel circuit, newly constituted
panels are generally bound by prior panel decisions); Metcalf &
_________
23
Eddy, Inc. v. Puerto Rico Aqueduct and Sewer Auth., 945 F.2d 10,
__________ ____________________________________
12 (1st Cir. 1991) (same), cert. granted, 112 S. Ct. 1290 (1992).
_____ _______
Those contentions not foreclosed, some of which are cloaked in
mistake-of-law raiment, collectively comprise nothing more than a
sustained and ultimately ineffectual bombardment of the
district court's factual findings.8
III. CONCLUSION
III. CONCLUSION
We need go no further. The task which we set for the
district court after the initial trial was predominantly
factbound. See EMA, 889 F.2d at 1154, 1157. In the course of
___ ___
the proceedings on remand, the court competently performed that
task. In so doing, it determined, principally as a matter of
fact, that appellant had not proven an indispensable element of
its remaining claim: causation. Mindful that a party alleging
causation must carry the devoir of persuasion with respect to the
issue, see, e.g., Swift v. United States, 866 F.2d 507, 509 (1st
___ ____ _____ _____________
Cir. 1989), and cognizant of the deferential standard of review
that Rule 52(a) imports, we cannot say that the court was clearly
____________________
8These include several attacks upon the lower court's
subsidiary findings. Because none have merit, we will not recite
book and verse. We do, however, offer a representative sample.
Appellant castigates the finding that it hired G & M to locate
the source of the contamination with a view toward litigation,
not for response or remediation purposes. But, the court's
conclusion is adequately grounded in the record. Indeed, the
minutes of Dedham's October 28, 1981 board of directors meeting
indicate that G & M's study was intended "to recover damages from
the polluters, if they can be identified."
24
mistaken either in reaching this result or in making the
subsidiary findings of fact upon which the result rested.9
Because the district court's findings are
satisfactorily supported by the evidence and free from legal
error, the judgment below is velivolant. Consequently, our
voyage ends here.10
Affirmed.
Affirmed.
________
____________________
9Like the district court and the parties, we have confined
the bulk of our opinion to appellant's claims under CERCLA. The
state-law claims under Mass. Gen. L. Ch. 21E fare no better.
After all, the Massachusetts statute is "patterned after the
federal CERCLA statute" and the inquiry under it, with one
exception, is not substantively different from the inquiry under
CERCLA. EMA, 889 F.2d at 1156-57. The exception relates to the
___
availability of attorneys' fees to prevailing parties. See Mass.
___
Gen. L. Ch. 21E, 15 (expressly allowing an award of "reasonable
attorney and expert witness fees"); EMA, 889 F.2d at 1157
___
(discussing provision); contrast New York v. SCA Servs., Inc.,
________ _________ _________________
754 F. Supp. 995, 1000 (S.D.N.Y. 1991) ("prevailing rule is that
attorney's fees are not recoverable as response costs in actions
under 107 of CERCLA brought by private litigants"). In this
case, however, Dedham's claim for attorneys' fees under Chapter
21E founders for the same reason as its claim for preliminary
response costs. See supra note 3.
___ _____
10Cumberland has suggested two alternative grounds on which
the judgment below might be affirmed. Given our disposition of
this appeal, we have no occasion to consider these suggestions.
25