United States District Court, D. Minnesota
E. Kubler, Esq., Richard C. Landon, Esq. and Gray Plant
Mooty, and Daniel J. Herber, Esq., University of Minnesota,
counsel for plaintiff.
Phillip R. Dupre and Lauren D. Grady, DOJ-Environment and
Natural Res. Div., Environmental Defense Section, and
Friedrich A.P. Siekert, United States Attorney counsel for
defendant United States of America.
Stephanie R. Feingold, Esq. and Morgan Lewis & Bockus,
counsel for defendant E.I. du Pont de Nemours and Company.
S. Doty, Judge United States District Court
matter is before the court upon the motion for judgment on
the pleadings by defendant United States of America. Based on
a review of the file, record, and proceedings herein, and for
the following reasons, the court denies the motion.
environmental dispute arises out of a contract between
plaintiff Regents of the University of Minnesota (University)
and the United States. During World War II, the United States
operated the Gopher Ordinance Works (GOW), a facility
“designed to produce smokeless cannon and rifle powder,
oleum and other materials used in the manufacture of
smokeless powder.” Compl. ¶¶ 3, 21. The GOW
was located on 13, 600 acres of land in Rosemount, Minnesota
(Site). Id. ¶¶ 2, 29. The GOW was
designed, constructed, and operated by defendant E.I. du Pont
de Nemours and Company (DuPont). Id. ¶¶ 4,
30-31. Between November 1994 and August 1945, the GOW
produced “an estimated 29 million pounds of smokeless
powder, 80 million pounds of oleum and 51 million pounds of
nitric acid.” Id. ¶ 33.
the war, the United States determined that it no longer
needed the GOW and transferred the Site to the University
through two quitclaim deeds and corresponding contracts for
sale. Id. ¶¶ 6, 38. The first
deed, executed in 1947, conveyed a 4, 687-acre parcel
consisting largely of open space (1947 Parcel). Id.
¶ 43; Countercl. ¶ 28. The second deed, executed in
1948, conveyed a 3, 320-parcel that “contained most of
the buildings, infrastructure, and equipment transferred to
the University” (1948 Parcel). Compl. ¶ 43;
Countercl. ¶ 28. The instant motion only involves claims
and counterclaims relating to the 1948 Parcel. The deed
conveying the 1948 Parcel (1948 Deed) contains the following
By the acceptance of this instrument and as a further
consideration for this conveyance, the [University] herein
covenants and agrees for itself and its successors and
assigns to assume all risk for all personal injuries and
property damages arising out of ownership, maintenance, use
and occupation of the foregoing property, and further
covenants and agrees to indemnify and save harmless the ...
the United States of America ... against any and all
liability claims, causes of action or suits due to, arising
out of, or resulting from, immediately or remotely, the
possible contaminated condition, ownership, use, occupation
or presence of the [University], or any other person upon the
property lawfully or otherwise.
and Countercl. Ex. 2 at 5.
corresponding contract for sale (1948 Contract) includes the
The [University] acknowledges that the above-described
property may be contaminated and it assumes all liability and
responsibility which may arise out of the said contaminated
condition, decontamination and use and occupancy of the said
property. The [University] further agrees that it will
perform at its sole expense any and all decontamination work
or functions found necessary in order to render the
above-described property free of any and all dangers of
explosives and suitable for general usage.
Id. Ex. 5 at 4.
the mid-1980s, the Site has been subject to numerous
environmental studies and investigations, which have revealed
the release or threatened release of hazardous materials at
the Site. See Compl. ¶¶ 52-81; Countercl.
¶¶ 73-74. The Minnesota Pollution Control Agency
has identified the University, the United States Army Corps
of Engineers, and DuPont as “responsible persons”
under the Minnesota Environmental Response and Liability Act
(MERLA). Compl. ¶¶ 75-76. According to the
University, it has incurred more than $3 million in
“environmental investigation and other necessary
response costs in connection with the release or threatened