FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITY OF COLTON, a California
municipal corporation,
Plaintiff-Appellant,
v.
AMERICAN PROMOTIONAL EVENTS,
INC.-WEST; APOLLO
MANUFACTURING CO.; ASTRO
PYROTECHNICS, INC.; ATLAS
FIREWORKS COMPANY, INC.; BLACK
& DECKER, INC.; CALIFORNIA No. 06-56718
FIREWORKS DISPLAY COMPANY;
COUNTY OF SAN BERNARDINO; D.C. No.
CV-05-01479-JFW
EMHART INDUSTRIES, INC.; GOODRICH
CORPORATION; KWIKSET LOCKS, OPINION
INC.; PYRO SPECTACULARS, INC.;
PYROTRONICS CORP.; RED DEVIL
FIREWORKS COMPANY; THOMAS O.
PETERS; THE 1966 THOMAS O.
PETERS AND KATHLEEN S. PETERS
REVOCABLE TRUST; TROJAN
FIREWORKS, CO.; UNITED FIREWORKS
MANUFACTURING COMPANY INC.;
WHITTAKER CORPORATION,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted
January 11, 2010—Pasadena, California
11137
11138 COLTON v. AMERICAN PROMOTIONAL EVENTS
Filed August 2, 2010
Before: Alfred T. Goodwin, William C. Canby, Jr., and
Diarmuid F. O’Scannlain, Circuit Judges.
Opinion by Judge O’Scannlain
11140 COLTON v. AMERICAN PROMOTIONAL EVENTS
COUNSEL
Roderick E. Walston, Best Best & Krieger LLP, Walnut
Creek, California, argued the cause and filed briefs for
COLTON v. AMERICAN PROMOTIONAL EVENTS 11141
plaintiff-appellant. With him on the briefs were Gene Tanaka,
Cynthia Germano, and Danielle G. Sakai, Best Best &
Krieger LLP, Walnut Creek, California.
James L. Meeder, Allen Matkins Leck Gamble Mallory &
Natsis LLP, San Francisco, California, argued the cause and
filed a brief for defendants-appellees American Promotional
Events, Inc.-West, Astro Pyrotechnics, Inc., Black & Decker,
Inc., County of San Bernardino, Emhart Industries, Inc.,
Kwikset Locks, Inc., Thomas O. Peters, The 1996 Thomas O.
Peters and Kathleen S. Peters Revocable Trust, Trojan Fire-
works, and Whittaker Corp. With him on the brief were Ruth
E. Stringer, Maxine M. Morisaki, Robert L. Jocks, Office of
the County Counsel, County of San Bernardino, San Bernar-
dino, California; Timothy V.P. Gallagher, Martin N. Refkin,
Thomas A. Bloomfield, and Thomas S. Sites, Gallagher &
Gallagher, P.C., Los Angeles, California; John E. Van Vlear
and Daniel S. Kippen, Voss Cook & Thel LLP, Newport
Beach, California; Richard A. Dongell, Matthew Clark Bures,
and Christopher T. Johnson, Dongell Lawrence Finney, Los
Angeles, California; Robert D. Wyatt and Gary A. Slodoba,
Allen Matkins Leck Gamble Mallory & Natsis LLP, San
Francisco, California; Steven H. Goldberg, Daniel J. Coyle,
and Amilia Glikman, Downey Brand LLP, Sacramento, Cali-
fornia; Steven J. Renshaw, Renshaw & Associates, PLC, Tor-
rance, California; Philip Hunsucker and Allison McAdam,
Resolution Law Group, P.C., Lafayette, California; David C.
Solinger and Erik Mroz, Resolution Law Group, P.C., Wood-
land Hills, California.
Jeffrey D. Dintzer, Gibson, Dunn & Crutcher LLP, Los Ange-
les, California, filed a brief on behalf of defendant-appellee
Goodrich Corporation. With him on the brief were Denise G.
Fellers, Gibson, Dunn & Crutcher LLP, Los Angeles, Califor-
nia, and Michael K. Murphy, Gibson, Dunn & Crutcher LLP,
Washington, D.C.
Philip C. Hunsucker, Resolution Law Group, P.C., Lafayette,
California, filed a brief on behalf of defendant-appellant Pyro
11142 COLTON v. AMERICAN PROMOTIONAL EVENTS
Spectaculars, Inc. With him on the brief were Brian L. Zagon
and Allison E. McAdam, Resolution Law Group, P.C., Lafay-
ette, California.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide, among other things, whether the City of
Colton, California, can recover response costs under the Com-
prehensive Environmental Response, Compensation, and Lia-
bility Act allegedly incurred as a result of perchlorate
contamination in its water supply.
I
A
The Comprehensive Environmental Response, Compensa-
tion, and Liability Act of 1980 (“CERCLA”) “is a compre-
hensive statute that grants the President broad power to
command government agencies and private parties to clean up
hazardous waste sites.” Key Tronic Corp. v. United States,
511 U.S. 809, 814 (1994). Under CERCLA section 107(a), 42
U.S.C. § 9607(a), a private party may “recover expenses asso-
ciated with cleaning up contaminated sites.” United States v.
Atl. Research Corp., 551 U.S. 128, 131 (2007).
To establish a prima facie claim for recovery of response
costs under section 107(a), a private-party plaintiff must dem-
onstrate:
(1) the site on which the hazardous substances are
contained is a “facility” under CERCLA’s definition
of that term, Section 101(9), 42 U.S.C. § 9601(9);
(2) a “release” or “threatened release” of any “haz-
COLTON v. AMERICAN PROMOTIONAL EVENTS 11143
ardous substance” from the facility has occurred, 42
U.S.C. § 9607(a)(4); (3) such “release” or “threat-
ened release” has caused the plaintiff to incur
response costs that were “necessary” and “consistent
with the national contingency plan,” 42 U.S.C.
§§ 9607(a)(4) and (a)(4)(B); and (4) the defendant is
within one of four classes of persons subject to the
liability provisions of Section 107(a).
Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863,
870-71 (9th Cir. 2001) (en banc) (“Carson Harbor I”) (inter-
nal quotation marks omitted). Only the third element—
whether the response costs were necessary and consistent with
the national contingency plan (“NCP”)—is at issue in this
appeal.
Response costs are considered necessary when “an actual
and real threat to human health or the environment exist[s].”
Id. at 871. Response costs are considered consistent with the
NCP “if the action, when evaluated as a whole, is in substan-
tial compliance” with it. 40 C.F.R. § 300.700(c)(3)(i). The
NCP “specifies procedures for preparing and responding to
contaminations and was promulgated by the Environmental
Protection Agency (EPA) pursuant to CERCLA § 105.” Coo-
per Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 161 n.2
(2004); see also 40 C.F.R. Pt. 300 (codifying the NCP). “It is
designed to make the party seeking response costs choose a
cost-effective course of action to protect public health and the
environment.” Carson Harbor Village Ltd. v. County of Los
Angeles, 433 F.3d 1260, 1265 (9th Cir. 2006) (“Carson Har-
bor II”) (internal quotation marks omitted).
B
The City of Colton (“Colton”) draws its water supply from
the Rialto-Colton groundwater basin (“Basin”) in San Bernar-
dino County, California. In 1997, Colton began monitoring its
municipal supply wells for perchlorate contamination. By
11144 COLTON v. AMERICAN PROMOTIONAL EVENTS
2002, Colton had detected perchlorate in three of its wells in
concentrations ranging from about 4 to 10 micrograms per
liter (“µg/L”). At the time, the California Department of
Health Services (“CDHS”), which regulates water quality,
had an “advisory action level” for perchlorate of 4 µg/L.
CDHS informed Colton that because “the perchlorate action
level is an advisory action level, and thus, not enforceable,”
the three impacted wells “may continue to be used to supply
the system.” Nevertheless, in a closed-session meeting
between its City Council and City Attorney, Colton adopted
a policy of prohibiting the use of water with perchlorate levels
above 4 µg/L. Pursuant to this policy, Colton took the
impacted wells out of service and instituted a wellhead treat-
ment program to eliminate the perchlorate in 2003.
C
In 2005, Colton filed suit against numerous entities that had
engaged in industrial activities in the Basin over the years,
alleging that they caused the release of perchlorate into the
groundwater. In its third amended complaint, filed in Decem-
ber 2005, Colton alleged that it had spent $4 million to inves-
tigate the contamination and to implement the wellhead
treatment program. Colton asserted claims for cost recovery
and contribution under CERCLA, 42 U.S.C. §§ 9607(a),
9613(f); a claim for declaratory relief as to liability for future
costs under the Declaratory Judgment Act, 28 U.S.C.
§§ 2201-2202; and various claims under state law.
Numerous defendants filed a motion for summary judg-
ment, arguing that Colton could not recover its wellhead treat-
ment program costs under CERCLA.1 In its opposition,
1
The defendant entities which joined in the motion were the County of
San Bernardino, the 1996 Thomas O. Peters and Kathleen S. Peters Revo-
cable Trust, Thomas O. Peters, American Promotional Events, Inc.-West,
Pyro Spectaculars, Inc., Astro Pyrotechnics, Inc., Emhart Industries, Inc.,
Kwikset Locks, Inc., Black & Decker, Inc., Whittaker Corp., and Trojan
Fireworks Co.
COLTON v. AMERICAN PROMOTIONAL EVENTS 11145
Colton argued that the defendants were liable for not only its
wellhead treatment program costs, but also costs associated
with a future Basin-wide cleanup estimated to cost between
$55 and $75 million. The district court granted summary
judgment for the defendants on Colton’s federal claims and
declined to exercise supplemental jurisdiction over Colton’s
state law claims.2 The district court held that Colton could not
recover its costs associated with the wellhead treatment pro-
gram because it failed to show that such costs were necessary
and consistent with the NCP; furthermore, because Colton
could not show that it was entitled to recover any of its past
costs, its claim for declaratory relief as to its future costs nec-
essarily failed. Colton timely appealed.3
II
Colton first seeks reversal of the district court’s summary
judgment denying recovery of its past response costs. Colton
challenges the district court’s conclusion that the wellhead
treatment program was unnecessary because there was no
immediate threat to the public health or environment. See 42
U.S.C. § 9607(a)(4)(B). Colton concedes, however, that it
failed to comply with the national contingency plan in its past
response action. Because Colton’s concession is a sufficient
ground upon which to affirm the summary judgment with
respect to past response costs, we decline to review the merits
of the district court’s conclusion that such costs were unnec-
2
Although not all the defendants joined in the motion for summary
judgment, the district court sua sponte granted summary judgment in favor
of the non-moving defendants.
3
The district court also dismissed all counterclaims and cross-claims.
Both Goodrich and Pyro Spectaculars, Inc. cross-appealed from the dis-
trict court’s dismissal of these counterclaims and cross-claims. We address
the cross-appeals in a memorandum disposition filed concurrently with
this opinion.
11146 COLTON v. AMERICAN PROMOTIONAL EVENTS
essary. See Dorsey v. Nat’l Enquirer, Inc., 973 F.2d 1431,
1438 (9th Cir. 1992).4
III
Colton also contends that the district court erred in granting
summary judgment denying its claim for declaratory relief as
to its future response costs.
A
Before addressing the merits of the claim, we turn to the
parties’ various jurisdictional arguments.
1
The parties dispute whether Colton’s claim for declaratory
relief is ripe. “The constitutional ripeness of a declaratory
judgment action depends upon whether the facts alleged,
under all the circumstances, show that there is a substantial
controversy, between parties having adverse legal interests, of
sufficient immediacy and reality to warrant the issuance of a
declaratory judgment.” In re Coleman, 560 F.3d 1000, 1005
(9th Cir. 2009) (internal quotation marks omitted).
[1] In Wickland Oil Terminals v. Asarco, Inc., 792 F.2d
4
Colton contends that if the district court’s holding on the necessity of
the response action is allowed to stand, such holding could have a preclu-
sive effect in subsequent litigation. We note, however, that in a future
action, Colton could argue that our reliance on the NCP compliance hold-
ing alone vitiates any preclusive effect of the district court’s necessity
holding. See, e.g., Niagara Mohawk Power Corp. v. Tonawanda Band of
Seneca Indians, 94 F.3d 747, 754 (2d Cir. 1996) (“It is a well-established
principle of federal law that if an appellate court considers only one of a
lower court’s alternative bases for its holding, affirming the judgment
without reaching the alternative bases, only the basis that is actually con-
sidered can have any preclusive effect in subsequent litigation.”); see also
Restatement (Second) of Judgments § 27, cmt. o (1982).
COLTON v. AMERICAN PROMOTIONAL EVENTS 11147
887 (9th Cir. 1986), we held that a claim for declaratory relief
as to CERCLA liability is ripe when the “essential fact estab-
lishing [the plaintiff’s] right to declaratory relief—the alleged
disposal of hazardous substances . . . —has already occurred.”
Id. at 893. Later, in In re Dant & Russell, Inc., 951 F.2d 246
(9th Cir. 1991), we held that a claim for cost recovery and
declaratory relief under CERCLA becomes ripe only after
plaintiffs “spend some money responding to an environmental
hazard.” Id. at 249. Finally, in Boeing Co. v. Cascade Corp.,
207 F.3d 1177 (9th Cir. 2000), we held that a claim for
declaratory relief for contribution under CERCLA section 113
is ripe when “[t]he pollution has been carefully studied, the
parties litigated a genuine controversy about millions of dol-
lars they had already spent, and the facts bringing about their
relative responsibility have already occurred.” Id. at 1192.
[2] None of these cases imposed any requirement that a
party incur recoverable—i.e., necessary and NCP-compliant
—response costs before its claim for declaratory relief is ripe.
Indeed, our cases make clear that so long as there has been a
release of hazardous substances, and the plaintiff spends some
money responding to it, a claim for declaratory relief is ripe
for review. Accord Cal. ex rel. Cal. Dep’t of Toxic Substances
Control v. Neville Chem. Co., 358 F.3d 661, 668 n.4 (9th Cir.
2004) (explaining in dicta that “[a]s soon as [the plaintiff]
expended its first dollar, it could have sued [the defendant] for
this dollar and sought a declaratory judgment of [defendant’s]
liability for future response costs”).
[3] Here, the facts establishing Colton’s right to declara-
tory relief have already occurred because there is no dispute
that there is perchlorate contamination of the Basin. More-
over, there is no dispute that Colton has incurred costs in
responding to the contamination, and that Colton will incur
additional costs in the future. The only dispute is whether
Colton is entitled to recover these costs, which goes to the
merits, not justiciability. Because this controversy cannot be
deemed “remote and hypothetical,” Wickland Oil, 792 F.2d at
11148 COLTON v. AMERICAN PROMOTIONAL EVENTS
893, we conclude that Colton’s claim for declaratory relief is
ripe.
2
[4] We next turn to the argument that Colton has mooted
this appeal by filing a substantially new action in the same
district court.5 “A case is moot on appeal if no live contro-
versy remains at the time the court of appeals hears the case.”
NASD Dispute Resolution, Inc. v. Judicial Council of State of
Cal., 488 F.3d 1065, 1068 (9th Cir. 2007). The test for moot-
ness is “whether the appellate court can give the appellant any
effective relief in the event that it decides the matter on the
merits in his favor.” Id. (internal quotation marks omitted).
[5] The defendants argue that Colton has effectively
redressed the injury it seeks to remedy with this appeal—
namely, the district court’s dismissal of its declaratory relief
claim—by filing a new action seeking the same relief. There-
fore, our reinstatement of such claim would be superfluous.
However, “[t]here is a recognized defense to a claim of moot-
ness in the appellate context when a party can demonstrate
that a lower court’s decision, if allowed to stand, may have
collateral consequences adverse to its interests.” ConnectU
LLC v. Zuckerberg, 522 F.3d 82, 88 (1st Cir. 2008). Here,
Colton faces a potential statute of limitations bar with respect
to its claims against certain defendants, an argument these
defendants have pressed in the later-filed action. A reversal by
this court could put Colton on better footing with regard to
limitations defenses, which “is a collateral consequence of the
type that suffices to defuse a claim of mootness.” Id. at 89.
We therefore conclude that this appeal is not moot.
5
The second action filed by Colton, No. 06-01319, was eventually dis-
missed without prejudice. Colton then filed a third action, No. 09-01864,
which is currently pending in the district court. It is this third action to
which we refer.
COLTON v. AMERICAN PROMOTIONAL EVENTS 11149
3
Finally, we consider whether the district court’s disposal of
Colton’s CERCLA past response cost-recovery claims
deprived the court of subject matter jurisdiction over the
declaratory relief claim.6
[6] “It is well settled that the Declaratory Judgment Act
does not itself confer federal subject matter jurisdiction but
merely provides an additional remedy in cases where jurisdic-
tion is otherwise established.” Staacke v. U.S. Sec’y of Labor,
841 F.2d 278, 280 (9th Cir. 1988) (internal quotation marks
and citation omitted). “Any non-frivolous assertion of a fed-
eral claim suffices to establish federal question jurisdiction,
even if that claim is later dismissed on the merits.” Cement
Masons Health & Welfare Trust Fund for N. Cal. v. Stone,
197 F.3d 1003, 1008 (9th Cir. 1999).
[7] Here, Colton’s declaratory relief claim is predicated on
CERCLA, a federal statute providing a private right of action.
Colton’s nonfrivolous assertion of a CERCLA declaratory
relief claim is therefore sufficient to confer federal subject
matter jurisdiction, regardless of the district court’s conclu-
sion that Colton’s CERCLA past response cost-recovery
claims lacked merit.
B
Turning to the merits, we note that the district court held
that because it was granting summary judgment on the section
107 cost-recovery claims, “Defendants are entitled to sum-
mary judgment in their favor on Plaintiff’s . . . claim for
6
We reject the argument that Colton is judicially estopped from arguing
that there is subject matter jurisdiction. It is well established that subject
matter jurisdiction cannot be expanded or contracted “by prior action or
consent of the parties.” Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 17-18
(1951).
11150 COLTON v. AMERICAN PROMOTIONAL EVENTS
[declaratory] relief as well.” Colton argues that its failure to
incur recoverable response costs in the past has no bearing on
whether it will incur such costs in the future.7 Therefore, Col-
ton contends that it should still be allowed to seek declaratory
relief as to liability for its future costs.
[8] Whether a CERCLA plaintiff’s failure to establish lia-
bility for its past costs necessarily dooms its bid to obtain a
declaratory judgment as to liability for its future costs appears
to be an issue of first impression in this circuit. Our sister cir-
cuits have taken divergent approaches to this issue. Some
have held or suggested that recoverable past costs are a sine
qua non for declaratory relief under CERCLA. See, e.g.,
Trimble v. Asarco, Inc., 232 F.3d 946, 958 (8th Cir. 2000),
overruled on other grounds by Exxon Mobil Corp. v. Allapat-
tah Servs., Inc., 545 U.S. 546 (2005); Gussack Realty Co. v.
Xerox Corp., 224 F.3d 85, 92 (2d Cir. 2000) (per curiam);
United States v. Occidental Chem. Co., 200 F.3d 143, 153-54
(3d Cir. 1999). Others have held or suggested that declaratory
relief may be available even in the absence of recoverable
past costs. See, e.g., United States v. Davis, 261 F.3d 1, 46
(1st Cir. 2001); County Line Inv. Co. v. Tinney, 933 F.2d
1508, 1513 (10th Cir. 1991) (per curiam).
1
[9] The text of the Declaratory Judgment Act provides, in
relevant part, that “[i]n a case of actual controversy within its
jurisdiction, . . . any court of the United States, upon the filing
of an appropriate pleading, may declare the rights and other
7
Contrary to the defendants’ assertion, Colton did not waive this argu-
ment by failing to raise it below. In opposition to summary judgment, Col-
ton argued that “it was not required to complete all tasks required by the
NCP prior to the filing of the complaint,” and that “so long as [it] has
incurred at least nominal response costs,” it could “invoke the declaratory
relief provision of CERCLA to recover its future costs,” even if “it is still
too early to know how Colton will comply with the NCP.” This is the
same argument it now makes on appeal.
COLTON v. AMERICAN PROMOTIONAL EVENTS 11151
legal relations of any interested party seeking such declara-
tion, whether or not further relief is or could be sought.” 28
U.S.C. § 2201(a). CERCLA also contains a provision for
declaratory relief. Section 113(g)(2) provides that in any ini-
tial cost-recovery action under section 107, “the court shall
enter a declaratory judgment on liability for response costs or
damages that will be binding on any subsequent action or
actions to recover further response costs or damages.” 42
U.S.C. § 9613(g)(2).
[10] Although Colton’s complaint referred to the Declara-
tory Judgment Act rather than CERCLA section 113(g)(2),
the latter provision clearly governs this initial cost-recovery
action. Because “a precisely drawn, detailed statute pre-empts
more general remedies,” Hinck v. United States, 550 U.S.
501, 506 (2007) (internal quotation marks omitted), we must
consider whether Colton was entitled to declaratory relief
under CERCLA’s more detailed declaratory relief provision.
See A. Shapiro & Sons, Inc. v. Rutland Waste & Metal Co.,
76 F. Supp. 2d 82, 88 (D. Mass. 1999) (declining “to permit
an indirect approach to declaratory relief [under the Declara-
tory Judgment Act] when the direct CERCLA-based approach
. . . is unavailable”).
[11] The declaratory judgment mandated by section
113(g)(2) pertains to “liability for response costs.” 42 U.S.C.
§ 9613(g)(2). Such “liability for response costs” must refer to
the response costs sought in the initial cost-recovery action,
given that the sentence later refers to “any subsequent action
or actions to recover further response costs.” Id. (emphases
added). Therefore, if a plaintiff successfully establishes liabil-
ity for the response costs sought in the initial cost-recovery
action, it is entitled to a declaratory judgment on present lia-
bility that will be binding on future cost-recovery actions.
[12] Here, Colton has failed to establish present liability
because of its conceded failure to comply with the NCP but
seeks a declaratory judgment on future liability. Section
11152 COLTON v. AMERICAN PROMOTIONAL EVENTS
113(g)(2), however, does not provide for such relief. “[I]t is
an elemental canon of statutory construction that where a stat-
ute expressly provides a particular remedy or remedies, a
court must be chary of reading others into it.” Transam. Mort-
gage Advisors, Inc. v. Lewis, 444 U.S. 11, 19-20 (1979). In
section 113(g)(2), Congress specified a mechanism whereby
a declaration of liability for costs already incurred has preclu-
sive effect in future proceedings as to costs yet to be incurred.
If Congress had intended for a declaration of future liability
to be available, it could have provided that “the court shall
enter a declaratory judgment on liability for further response
costs.” That it did not leads us to conclude that declaratory
relief is available only if liability for past costs has been
established under section 107.
2
Colton would have us bypass the initial liability determina-
tion to further “CERCLA’s goal of encouraging private par-
ties to clean up hazardous sites.” According to Colton,
denying declaratory relief “would discourage private parties
from taking future actions to clean up hazardous sites if they
failed to comply with the NCP in taking past cleanup
actions.” CERCLA’s goal, however, is not simply to encour-
age private response, but rather to “make the party seeking
response costs choose a cost-effective course of action to pro-
tect public health and the environment” and to achieve “a
CERCLA-quality cleanup.” Carson Harbor II, 433 F.3d at
1265 (internal quotation marks omitted). Providing declara-
tory relief based on mere assurances of future compliance
with the NCP would create little incentive for parties to
ensure that their initial cleanup efforts are on the right track.
See Dant & Russell, 951 F.2d at 250 (noting that premature
relief under CERCLA can create perverse incentives).
Moreover, awarding declaratory relief before a plaintiff has
incurred any recoverable costs would undermine the very pur-
pose of declaratory relief, which is to “economize[ ] on judi-
COLTON v. AMERICAN PROMOTIONAL EVENTS 11153
cial time.” PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610,
616 (7th Cir. 1998). A court would have to make complicated
determinations as to which defendants are responsible for
what proportion of the release, without any assurance that the
plaintiff would ever “meet its burden of proving in an adver-
sary proceeding that its expenses were necessary and incurred
in a manner consistent with the national contingency plan.”
Stanton Road Assocs. v. Lohrey Enters., 984 F.2d 1015, 1021
(9th Cir. 1993).
[13] We conclude that CERCLA’s purposes would be bet-
ter served by encouraging a plaintiff to come to court only
after demonstrating its commitment to comply with the NCP
and undertake a CERCLA-quality cleanup. Upon establishing
liability under section 107, the plaintiff can “obtain reim-
bursement for [its] initial outlays, as well as a declaration that
the responsible party will have continuing liability for the cost
of finishing the job.” Dant & Russell, 951 F.2d at 249-50.
Such a declaration would allow the plaintiff to avoid costly
and time-consuming relitigation of liability once it has already
been established. See Kelley v. E.I. DuPont de Nemours &
Co., 17 F.3d 836, 844 (6th Cir. 1994) (“Congress included
language [in section 113(g)(2)] to insure that a responsible
party’s liability, once established, would not have to be reliti-
gated . . . .”). Where, as here, the plaintiff fails to establish
section 107 liability in its initial cost-recovery action, no
declaratory relief is available as a matter of law.
IV
[14] Colton also appeals from the dismissal of its pendent
state law claims. Having disposed of Colton’s federal claims,
the district court declined to exercise supplemental jurisdic-
tion over the state law claims. See 28 U.S.C. § 1367(c)(3).
“Because the district court did not err in granting summary
judgment on the federal claims, it did not abuse its discretion
in dismissing the state-law claims.” Bryant v. Adventist
Health Sys./W., 289 F.3d 1162, 1169 (9th Cir. 2002).
11154 COLTON v. AMERICAN PROMOTIONAL EVENTS
V
For the foregoing reasons, the district court’s summary
judgment is AFFIRMED.8
8
We grant the outstanding motions for judicial notice.