ELR Citation: ELR 20029
No(s). s. G89-10503 CA, -961 CA (W.D. Mich. May 24, 1991)

The court dismisses all state-law claims against the Michigan Department of Natural Resources (MDNR) brought by other responsible parties at a contaminated Michigan chemical manufacturing site in a consolidated Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) cost recovery action. After the court previously denied summary judgment motions and set the case for trial, the MDNR moved to dismiss the state-law claims against it, arguing that the court lacked jurisdiction because the agency had not waived its Eleventh Amendment immunity. The court first concludes that although the U.S. Supreme Court has interpreted CERCLA to waive states' immunity to be sued in federal court as potentially responsible parties, that waiver does not permit the court to hear state claims against a state agency absent the state's consent. The court holds that Michigan did not consent to waive its immunity to state claims, even though the MDNR participated in discovery, summary judgment arguments, and preparation of a final pretrial order regarding the substantive issues raised by the state-law claims. The court concludes that although puzzling, MDNR's actions do not constitute consent to federal jurisdiction necessary to waive immunity, because an Eleventh Amendment defense may be raised at any stage of the proceedings, including on appeal. The court next holds that MDNR's cross claim against other defendants in the case and counterclaim against the previous owner of the contaminated site do not act as a consent to jurisdiction by becoming a claimant in this litigation. Further, the court holds that the defendants' attempt to expand the state's exposure to damages falls outside the waiver exception, which is limited to claims reducing a state's amount of recovery. The defendants' state-law claims seek to shift their past and future CERCLA costs to the MDNR, which would impermissibly reach beyond the recoupment limitation and represent an affirmative judgment against the state.

[Previous decisions in this case are published at 20 ELR 20712 and 22 ELR 20022.]

Counsel for Plaintiff
Patrick J. Conlon
Lowenstein, Sandler, Kohl, Fisher & Boylan
65 Livingston Ave., Roseland NJ 07068
(201) 992-8700

J. Michael Smith, Gordon J. Quist
Miller, Johnson, Snell & Cummiskey
800 Calder Plaza Bldg., Grand Rapids MI 49503
(616) 459-8311

Counsel for Defendants
John D. Tully
Warner, Norcross & Judd
111 Lyon St. NW, Ste. 900, Grand Rapids MI 49503
(616) 459-6121