Columbia River Treaty Tribes file Ninth Circuit amicus brief in support of the Colville Tribes compensation for service loss
The Nez Perce Tribe, the Confederated Tribes of the Umatilla Indian Reservation, the Confederated Tribes of Warm Springs Reservation of Oregon, and the Confederated Tribes and Bands of the Yakama Nation, along with the Native American Rights Fund (NARF), submitted an amicus brief on December 12, 2024, in Pakootas v. Teck Cominco, Ltd. The brief urges the U.S. Court of Appeals for the Ninth Circuit to recognize a Tribe’s loss of culturally significant services derived from injured natural resources as recoverable damages under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
CERCLA uses broad language to permit governmental trustees – federal, state and Tribal – to recover damages from polluters for lost use and loss of services from natural resources, where such resources are injured, through a Natural Resource Damage Assessment (NRDA). Tribal Nations across the country are recognized as Natural Resource Trustees and participate in Natural Resource Trustee Councils that conduct the NRDAs.
“Numerous Tribal Nations across the United States are or have been recognized as CERCLA Natural Resource Trustees and, given the damages they have suffered, this case is of great significance to them,” said NARF Staff Attorney Tom Murphy.
The amicus brief asks the Ninth Circuit to reverse the Eastern District of Washington’s order, which granted Teck Cominco’s motion for partial summary judgment deeming culturally significant service loss claims beyond the scope of CERCLA recovery.
The brief argues the U.S. Eastern District of Washington arbitrarily and incorrectly reframed the Colville Tribes’ service loss damages as “cultural resource damages” and summarily distinguished injured “cultural” resources from “natural” resources without analyzing CERCLA’s express language permitting lost use- and service loss-based damages.
If Tribes cannot recover damages when injury to a natural resource prevents the resource from playing its traditionally recognized role in Tribal history and culture, i.e., from providing a service to the Tribe, CERCLA will not succeed in making trustees “whole,” as the statute is designed to do. Moreover, this interpretation would disproportionately affect Tribes, as opposed to state and federal trustees, since many Tribal uses of natural resources are integral to Tribal histories and cultures.
“For many Native communities, natural resources are and have always been cultural resources, for there is a constant exchange of service between the Tribal Nation and the natural environment within which it exists and lives,” said NARF Tribal Water Institute Fellow Melissa Kay. “To deny that reality is to refuse to make a Tribe whole under CERCLA.”
“Congress’s 1986 Amendment to CERCLA explicitly included Tribes as trustees, recognizing the unique losses that Tribes suffer from environmental contamination and the importance of making Tribes whole,” said Nez Perce Tribe Chairman Shannon Wheeler.
NARF is assisting the Columbia River Treaty Tribes that submitted the amicus brief. The Columbia River Treaty Tribes have treaty reserved sovereign, pre-statehood rights to harvest natural resources in the Columbia River Basin, including on- and off-reservation fishing rights.
The Tribes serve as trustees on one or more natural resource councils, including for the Hanford Superfund Site, where the United States produced plutonium for use in atomic weapons, and for the Portland Harbor Superfund Site, where, for decades, industries released contaminants into the river and adjacent land.
Preclusion of certain types of Tribal service losses from allowable damages through CERCLA’s recovery mechanism because they are deemed “cultural” has no basis in the law, and it would prevent the amici Tribes, and many others, from being made whole for the injuries wrought by decades of unmitigated pollution.
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