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BERREY v. ASARCO INC.

No. 04-5131.

439 F.3d 636 (2006)

John L. BERREY, Chairman; Colleen Wilson Austin; Edwina Faye Busby; Reberta Hallam Kyser; Florence Mathews; Ardina Revard Moore; Jean Ann Lambert; Edward Rodgers, individually and on behalf of all other members of the Quapaw Tribe of Oklahoma similarly situated, Plaintiffs, and The Quapaw Tribe of Oklahoma (O-Gah-Pah), Plaintiff-Counter-Defendant-Appellant, v. ASARCO INCORPORATED, Sued as: Asarco, Inc.; Childress Royalty Company, sued as: Childress Royalty Comp., Inc.; Doe Run Resources Corporation, sued as: The Doe Run Resources Corp.; Eagle-Picher Industries, Inc.; NL Industries, Inc.; United States of America; Gale Norton, United States Department of Interior; Putative Class Members; Billye D. Albright; James E. Gilmore; Beatrice A. Griffin; Emma Lou Griffin; July Griffin Pebeahsy; Buddy L. Richards; Fred L. Richards; Yaunak Stephenson; John Doe, sued as: John & Jane Does 1-300; Jane Doe, sued as: Jane Does 1-300; Cynthia D. Holi Blanchard; Jeb Dehanas; Patricia Ann Gillenwater; Linda L. Holiday; Sarah D. Justice; Betty Lee McDonald; Myron Mountford; Donna Rae Reeves; Jacqueline Ce Stillwell; George Valliere; Judy Garner Vanderflute; Betty J. Weithoner; Mary Lou Works; John Doe, sued as John and Jane Does 301-600 (Landowners); Jane Doe, sued as John and Jane Does 301-600 (Landowners), Defendants, and Blue Tee Corporation, sued as: Blue Tee Corp.; Gold Fields Mining Corporation, LLC, sued as: Gold Fields Mining Corp., Defendants-Counter-Claimants-Appellees.

United States Court of Appeals, Tenth Circuit.

February 22, 2006.

Attorney(s) appearing for the Case

Stephen R. Ward (Shelley L. Carter, with him on the briefs), Conner & Winters, LLP, Tulsa, OK, for Plaintiff-Counter-Defendant-Appellant.

Stanley D. Davis, Shook, Hardy & Bacon, LLP, Kansas City, MO (Kirk F. Marty, Rebecca J. Schwartz, Barbara M. Smith, Shook, Hardy & Bacon, LLP, Kansas City, MO; Robert J. Joyce, Joyce, Paul & McDaniel, P.C., Tulsa, OK, with him on the brief), for Defendants-Counter-Claimants-Appellees.

Before HENRY, McWILLIAMS and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. Introduction

Plaintiff-Appellant Quapaw Tribe brought suit against Defendants-Appellees Blue Tee Corporation and Gold Fields Mining, alleging Defendants and their predecessors in interest caused environmental contamination on Quapaw lands as a result of their mining activities in the 1900s. Defendants asserted counterclaims for contribution and indemnity. The Tribe filed a motion to dismiss Defendants' counterclaims,...

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