Petition for Writ of Certiorari — Teck Metals Ltd., fka Teck Cominco Metals Ltd., a Canadian corporation, Petitioner v. Confederated Tribes of the Colville Reservation
Supreme Court briefJul 24, 2026
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APPENDIX
APPENDIX
TABLE OF CONTENTS
Page
APPENDIX A — Opinion of the United States
Court of Appeals for the Ninth Circuit
(Sept. 3, 2025)................................................................ 1a
APPENDIX B — Order of the District Court for
the Eastern District of Washington granting
renewed motion for interlocutory appeal
(July 9, 2024) ............................................................... 20a
APPENDIX C — Order of the District Court for
the Eastern District of Washington denying
motion for reconsideration
(Apr. 10, 2024) ............................................................. 25a
APPENDIX D — Order of the District Court for
the Eastern District of Washington granting
defendant’s motion for partial summary
judgment
(Feb. 6, 2024)............................................................... 29a
APPENDIX E — Order of the United States
Court of Appeals for the Ninth Circuit
denying rehearing en banc
(Feb. 26, 2026)............................................................. 35a
APPENDIX F — Statutory provisions involved
42 U.S.C. § 9601 (Definitions)................................... 37a
42 U.S.C. § 9607 (Liability) ....................................... 38a
42 U.S.C. § 9651 (Reports and Studies) .................. 42a
(I)
1a
APPENDIX A
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CONFEDERATED TRIBES OF
THE COLVILLE
RESERVATION,
Plaintiff - Appellant,
and
No. 24-5565
D.C. No.
2:04-cv-00256SAB
OPINION
JOSEPH A. PAKOOTAS, an
individual and enrolled member of
the Confederated Tribes of the
Colville Reservation, DONALD
R. MICHEL, an individual and
enrolled member of the
Confederated Tribes of the
Colville Reservation,
Plaintiffs,
STATE OF WASHINGTON,
Intervenor-Plaintiff,
v.
TECK COMINCO METALS
LTD, a Canadian corporation,
Defendant - Appellee.
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Appeal from the United States District Court
for the Eastern District of Washington
Stanley Allen Bastian, District Judge, Presiding
Argued and Submitted April 17, 2025
Seattle, Washington
Filed September 3, 2025
Before: Ronald M. Gould and Richard A. Paez, Circuit
Judges, and Michael J. McShane, Chief District Judge.*
Opinion by Judge Gould
SUMMARY**
Environmental Law
In an interlocutory appeal, the panel reversed the
district court’s summary judgment in favor of Teck
Cominco Metals Ltd. and remanded for trial on the
Confederated Tribes of the Colville Reservation’s claims
for natural resource damages under § 107(a)(4)(C) of the
Comprehensive
Environmental
Response,
Compensation, and Liability Act against Teck.
The Tribes’ claims were based on Teck’s
contamination of the Upper Columbia River with
hazardous substances from its lead-zinc smelter in British
Columbia, resulting in injuries to fish and benthic
organisms in the river. The Tribes sought damages for
their members’ interim lost use of the injured natural
resources. The district court granted summary judgment
The Honorable Michael J. McShane, United States Chief District
Judge for the District of Oregon, sitting by designation.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
**
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on the basis that the Tribes sought damages for injured
“cultural resources,” not “natural resources,” and that
claims involving damages with a cultural component are
not cognizable under CERCLA.
The panel agreed with the district court that natural
resource damages under CERCLA are only available to
address injury to natural resources, defined under the
statute as “land, fish, wildlife, biota, air, water, ground
water, drinking water supplies, and other such
resources.” But the panel held that this definition does not
mean that natural resource trustees can only recover
damages to restore or replace natural resources that are
directly injured by the release of a hazardous substance.
Rather, natural resource damages under CERCLA
normally include restoration costs at a minimum, plus
interim lost-use value in appropriate cases. Considering
CERCLA’s text and its restorative purpose, and agreeing
with the D.C. Circuit, the panel held that CERCLA
authorizes damages for lost uses of injured natural
resources in cases where the lost uses have a cultural
dimension.
COUNSEL
Paul J. Dayton (argued), Daniel J. Vecchio, and
Alexandrea M. Smith, Ogden Murphy Wallace PLLC,
Seattle, Washington, for Plaintiff-Appellant.
Andrew A. Fitz and Joshua A. Osborne-Klein,
Assistant Attorneys General, Ecology Division, Office of
the Washington Attorney General, Olympia, Washington,
for Intervenor-Plaintiff.
Anne M. Voigts (argued), Pillsbury Winthrop Shaw
Pittman LLP, Palo, Alto, California; Amanda G. Halter,
Pillsbury Winthrop Shaw Pittman LLP, Houston, Texas;
Deborah B. Baum, Pillsbury Winthrop Shaw Pittman
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LLP, Washington, D.C.; Mark E. Elliott, Pillsbury
Winthrop Shaw Pittman LLP, Los Angeles, California;
Bryce J. Wilcox and Kammi M. Smith, Witherspoon
Brajcich Mcphee PLLC, Spokane, Washington; for
Defendant-Appellee.
Brian J. Cleary and Dianne L. Herz, Cleary Law
Group PC, Hayden, Idaho, for Amicus Curiae Spokane
Tribe of Indians.
Rex S. Heinke and Jessica M. Weisel, Complex
Appellate Litigation Group LLP, Los Angeles, California,
for Amicus Curiae His Majesty the King in Right of the
Province of British Columbia.
Joseph M. Manning, David S. Gualtieri, and Mary G.
Sprague, Attorneys, Environment & Natural Resources
Division; Todd Kim, Assistant Attorney General; United
States Department of Justice, Washington, D.C.; for
Amicus Curiae the United States.
Kendra A. Martinez, Tribal Attorney, Suquamish
Indian Tribe, Suquamish, Washington; Michael M.
Frandina, The Askman Law Firm, Denver, Colorado; for
Amicus Curiae Suquamish Indian Tribe.
Julie A. Weis, Haglund Kelley LLP, Portland,
Oregon, for Amicus Curiae Confederated Tribes of Siletz
Indians.
Kelly L. Perigoe and Hannah T. Nguyen, King &
Spalding LLP, Los Angeles, California, for Amici Curiae
the Canadian Chamber of Commerce and the Mining
Association of Canada.
Thomas L. Murphy and Ada M. Stepleton, Native
American Rights Fund, Boulder, Colorado; Winter
Hayes, Nez Perce Tribe, Lapwai, Idaho; Diana R. Bob,
Native Law PPLC, Bellingham, Washington; Josh
Newton, Best Best & Krieger LLP, Bend, Oregon; Tom
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Zeilman, Law Offices of Thomas Zeilman, Yakima,
Washington; for Amici Curiae Nez Perce Tribe, the
Confederated Tribes of the Umatilla Indian Reservation,
the Confederated Tribes of the Warm Springs
Reservation of Oregon, and the Confederated Tribes and
Bands of the Yakama Nation.
William M. Jay and Isabel M. Marin, Goodwin
Procter LLP, Washington, D.C.; Tawny A. Bridgeford,
National Mining Association, Washington, D.C.; Andrew
R. Varcoe and Stephanie A. Maloney, U.S. Chamber
Litigation Center; for Amici Curiae the National Mining
Association, American Exploration & Mining Association,
and Chamber of Commerce of the United States of
America.
OPINION
GOULD, Circuit Judge:
This appeal concerns the Confederated Tribes of the
Colville Reservation’s (the “Colvilles” or “Tribes”) claims
for natural resource damages under section 107(a)(4)(C)
of the Comprehensive Environmental Response,
Compensation, and Liability Act (“CERCLA”), 42 U.S.C.
§ 9607(a)(4)(C), against Teck Cominco Metals, Ltd.
(“Teck”), a Canadian corporation. The Tribes’ claims are
based on Teck’s contamination of the Upper Columbia
River with hazardous substances from its lead-zinc
smelter in Trail, British Columbia, resulting in injuries to
fish and benthic organisms in the river. The Tribes seek
damages for their members’ interim lost use of the injured
natural resources between the time of the release of the
hazardous substances and potential restoration. The
district court granted Teck summary judgment on the
Tribes’ damages claims, holding that the Tribes sought
damages for injured “cultural resources,” not “natural
resources,” and that claims involving damages with a
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cultural component are not cognizable under CERCLA.
We have jurisdiction under 28 U.S.C. § 1292(b) and we
reverse the district court’s grant of summary judgment
on the Tribes’ claims for natural resource damages and
remand for trial.
I. FACTS AND PROCEDURAL HISTORY
A
This case concerns the Upper Columbia River,
roughly 150 miles of river and reservoir in Washington
State, bounded to the north by the Canada-U.S. border
and to the south by the Grand Coulee Dam. The Colvilles
are a federally recognized tribe comprised of twelve
individual tribes whose members claim they have lived on
the banks of the Upper Columbia River since “time
immemorial.” The Upper Columbia River forms the
eastern and southern boundary of the Colville
Reservation and holds great cultural significance to the
Tribes.
Teck, a Canadian mining company, owns a smelter on
the banks of the Columbia River, ten miles north of the
Canadian border, in Trail, British Columbia. The district
court found that between 1930 and 1995, Teck discharged
about 400 tons of slag daily—an estimated 9.97 million
tons in total—directly into the Columbia River. The slag
discarded into the river contained 7,300 tons of lead and
255,000 tons of zinc. In addition to slag, Teck also
discharged untold gallons of contaminated effluent
directly into the Columbia River. The effluent discharged
into the river between 1923 and 2005 contained about
132,000 tons of hazardous substances, including 108,000
tons of zinc, 22,000 tons of lead, 200 tons of mercury, 1,700
tons of cadmium, and 270 tons of arsenic. What was once
the lifeblood of the Tribes, now became a toxic dumping
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ground, impacting the relationship the Tribe had with the
river.
B
Litigation regarding the contamination of the Upper
Columbia River commenced in 2004 when two members
of the Tribes brought a CERCLA citizen suit against
Teck. These plaintiffs were later joined by the State of
Washington as a plaintiff-intervenor and by the Colville
Tribes as a co-plaintiff. The district court trifurcated the
case to sequentially determine: (1) whether Teck was
liable as a potentially responsible party; (2) Teck’s liability
for response (i.e., cleanup) costs; and (3) Teck’s liability
for natural resource damages.
In Phase I of trial, the district court concluded that
Teck was liable as an arranger under CERCLA section
107(a)(3), § 9607(a)(3), and that Teck was jointly and
severally liable to the Tribes and the State in any
subsequent action or actions to recover past or future
response costs at the Upper Columbia River site under
CERCLA section 107(a)(4)(A), § 9607(a)(4)(A).
In Phase II, the State settled its claim for past
response costs while the Tribes proceeded to trial. The
district court found in favor of the Tribes and awarded
them $3,394,194.43 in investigative expenses incurred
through December 31, 2013, $4,859,482.22 in attorney’s
fees up to that date, and $344,300.00 in prejudgment
interest. Teck appealed, and we affirmed the district
court’s judgment. Pakootas v. Teck Cominco Metals, Ltd,
905 F.3d 565, 574, 596 (9th Cir. 2018).
The district court then proceeded with Phase III of
the case to determine Teck’s liability for damages to
natural resources. The Tribes and the State brought joint
claims for natural resource damages based on injury to
benthic organisms in the river sediment and elevated
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mercury levels in fish, including claims for damages for
the public’s lost use of those natural resources. Along
with these joint damages claims, the Tribes also
separately seek natural resource damages for their
interim lost uses of the injured natural resources that are
specific to their members because of their unique
relationship with the Upper Columbia River. The Tribes’
experts opined that the Tribes sustained natural resource
damages as a result of: (1) reduced tribal fishing trips due
to state-issued advisories concerning unsafe mercury
levels in fish; (2) the interim lost use of an uncontaminated
river; and (3) the interim lost use of the injured natural
resources for cultural purposes.1
Teck moved for partial summary judgment on the
Tribes’ separate natural resource damages claims,
arguing in part that CERCLA does not authorize natural
resource damages for cultural service losses.2 The district
court granted the motion, reasoning that the Tribes in
effect sought damages for cultural resources that are not
authorized under CERCLA. The Tribes moved for
The Colvilles state that their second and third categories of
damages are alternative approaches to damages.
1
CERCLA refers to recovery of damages for the “use value” of
injured natural resources, 42 U.S.C. § 9651(c)(2), but the
implementing regulations and the governing caselaw have used a
variety of other terms to describe the same concept, including “lost
use,” “interim lost use,” and “service loss.” See 43 C.F.R. § 11.83;
State of Ohio v. U.S. Dep’t. of the Interior, 880 F.2d 432, 448 (D.C.
Cir. 1989). The Tribes originally referred to their claims as “tribal
service loss” claims, but on appeal they refer to their claims as claims
for their “interim lost use” of injured natural resources. In this
opinion, we refer to the Tribes’ claims as lost use or interim lost use
claims.
2
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reconsideration, contending that Teck and the court
misconstrued their claims and emphasizing that they
sought natural resource damages, not cultural resource
damages. The district court denied the Tribes’ motion for
reconsideration. The Tribes then moved to certify the
summary judgment order for interlocutory appeal under
28 U.S.C. § 1292(b). The district court reiterated its
previous holding and granted the motion while
acknowledging that “there is a conflict between the
holding in State of Ohio which claims ‘nonuse’ services are
actionable under CERCLA and this Court’s Order
determining that such claims are not cognizable under
CERCLA if they involved damages with a cultural
component.” See State of Ohio v. U.S. Dep’t of the
Interior, 880 F.2d 432 (D.C. Cir. 1989). We granted
interlocutory review of the district court’s summary
judgment order dismissing the Tribes natural resource
damages claims.
II. STANDARD OF REVIEW
We review de novo a grant of summary judgment.
Lolli v. Cnty. of Orange, 351 F.3d 410, 414 (9th Cir. 2003).
When considering a grant of summary judgment, we view
the evidence in the light most favorable to the nonmoving
party, and we determine whether there are any genuine
issues of material fact and whether the district court
correctly applied the relevant substantive law. Id.
III. DISCUSSION
The Tribes contend that the district court erred in
granting summary judgment to Teck on their claims for
natural resource damages by characterizing the claims as
“cultural resources” injury and concluding that CERCLA
does not authorize damages for injuries to such “cultural
resources.” The Tribes contend that they are not seeking
damages for injured cultural resources, but rather for
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their lost use of injured natural resources where their lost
use has a cultural dimension in light of the Tribes’ unique
relationship with the Upper Columbia River. We use the
traditional tools of statutory interpretation to determine
whether the district court erred by dismissing the Tribes’
natural resource damage claims as a matter of law, and
whether § 9607(a)(4)(C) authorizes damages for the
interim lost uses of injured natural resources in a case
where the diminished uses have a cultural dimension.
CERCLA was enacted “[t]o provide for liability,
compensation, cleanup, and emergency response for
hazardous substances released into the environment and
the cleanup of inactive hazardous waste disposal sites.”
State of Idaho v. Hanna Mining Co., 882 F.2d 392, 394
(9th Cir. 1989) (alteration in original) (citing Pub. L. No.
96–510, 94 Stat. 2767 (1980)). CERCLA makes potentially
responsible parties jointly and severally liable not only for
“all costs of removal or remedial action,” but also for
“damages for injury to, destruction of, or loss of natural
resources, including the reasonable cost of assessing such
injury, destruction, or loss resulting from such a release
[of a hazardous substance].”
§ 9607(a)(4)(A), (C).
“Indian” Tribes, in addition to the United States and the
states, may sue as natural resource trustees to recover
these natural resource damages. § 9607(f)(1).
Congress conferred on the President (who in turn
delegated to the Department of the Interior (“Interior”))
the responsibility for promulgating regulations to address
how these natural resource damages would be assessed.
§ 9651(c)(1); State of Ohio, 880 F.2d at 439. Congress
stated that the regulations must:
identify the best available procedures to
determine [natural resource] damages,
including both direct and indirect injury,
destruction, or loss and shall take into
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consideration factors including, but not
limited to, replacement value, use value,
and ability of the ecosystem or resource to
recover. § 9651(c)(2).
The statute also states that the measure of natural
resources damages “shall not be limited by the sums
which can be used to restore or replace [natural]
resources.” § 9607(f)(1).
Interior promulgated its first round of regulations
assessing natural resource damages in 1986. 51 Fed. Reg.
27,674 (Aug. 1, 1986) (codified at 43 C.F.R. pt. 11). This
first round of regulations prescribed a hierarchy of
methodologies by which the lost-use value of natural
resources could be measured, focusing exclusively on
market values for such resources when market values
were available. State of Ohio, 880 F.2d at 462 (citing id.).
Interior’s regulations were reviewed by the D.C. Circuit
in State of Ohio, which held that “Congress intended the
damage assessment regulations to capture fully all
aspects of loss,” and that Interior had “erroneously
construed the statute” to preclude certain methods for
determining the lost-use value of natural resources. Id. at
463–64. The D.C. Circuit remanded the regulations to
Interior with instructions to “consider a rule that would
permit trustees to derive use values for natural resources
by summing up all reliably calculated use values, however
measured,” including “‘passive’ use” or “nonconsumptive” values such as “[o]ption and existence
values” which “reflect utility derived by humans from a
resource, and thus, prima facie, ought to be included in a
damage assessment.” Id. at 464. The D.C. Circuit defined
option value as “the dollar amount an individual is willing
to pay although he or she is not currently using a resource
but wishes to reserve the option to use that resource in a
certain state of being in the future.” Id. at 475 n.72. And
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it defined existence value as the “dollar amount an
individual is willing to pay although he or she does not
plan to use the resource, either at present or in the future.
The payment is for the knowledge that the resource will
continue to exist in a given state of being.” Id. at 476 n.73.
Interior revised its regulations in response to State of
Ohio. Adhering to the D.C. Circuit’s reading of the scope
of CERCLA’s natural resource damages provisions, the
current implementing regulations provide that
recoverable damages for the interim lost use of natural
resources are measured by “both public use and nonuse
values such as existence and bequest values.” 43 C.F.R.
§ 11.83(c)(1). “Use value” is defined as “the economic
value of the resources to the public attributable to the
direct use of the services provided by the natural
resources.” § 11.83(c)(1)(i); see also 43 C.F.R. § 11.14(nn)
(defining “[s]ervices” as “the physical and biological
functions performed by the resource including the human
uses of those functions.”). “Nonuse value,” on the other
hand, represents “the economic value the public derives
from natural resources that is independent of any direct
use of the services provided.” § 11.83(c)(1)(ii).
Here, the Tribes have identified natural resource
injuries from Teck’s release of hazardous substances into
the Upper Columbia River—injured benthic organisms
and injured fish with elevated mercury levels—and seek
damages for their members’ interim lost use of those
natural resources. The Tribes provide three methods for
quantifying their interim lost use of the injured natural
resources: (1) reduced river trips by Tribal members due
to the mercury-based fish consumption advisories; (2) the
interim lost use of an uncontaminated river; and (3) the
interim lost use of the injured natural resources for
cultural purposes. The Tribes’ first lost use claim
measures the Tribes’ reduced river use due to the
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mercury-based fish advisories issued over the years and
applies an enhanced value based on the role of fishing in
the Colvilles’ culture. The Tribes’ second claim is derived
from a contingent valuation study that was based on the
nonuse or “existence value” of an uncontaminated Upper
Columbia River. The Tribes’ third claim reflects the
Tribes’ alternative measure of damages for use and
nonuse service losses as a result of the injured natural
resources. The Tribes acknowledge that their uses of the
injured natural resources include a cultural component
because of their unique relationship with the Upper
Columbia River.
We agree with the district court that natural resource
damages under CERCLA are only available to address
injury to natural resources. Natural resources are
defined as “land, fish, wildlife, biota, air, water, ground
water, drinking water supplies, and other such
resources.” 42 U.S.C. § 9601(16); 43 C.F.R. § 11.14(z).
But, contrary to the district court’s conclusion, this
definition does not mean that natural resource trustees
can only recover damages to restore or replace natural
resources that are directly injured by the release of a
hazardous substance. Congress made this explicit by
instructing that natural resource damages “shall not be
limited by the sums which can be used to restore or
replace natural resources.” § 9607(f)(1).
Section
9651(c)(2) requires that the regulations for assessing
natural resource damages consider, among other factors,
“use value,” and read together with § 9607(f)(1)’s “shall
not be limited by” language, directs that “the measure of
damages must not only be sufficient to cover the intended
restoration or replacement uses in the usual case but may
in some cases exceed restoration cost by incorporating
interim lost use value as well.” State of Ohio, 880 F.2d at
448. This means that natural resource damages under
CERCLA “normally include restoration costs at a
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minimum, plus interim lost-use value in appropriate
cases.” Alaska Sport Fishing Ass’n v. Exxon Corp., 34
F.3d 769, 772 (9th Cir. 1994) (emphasis omitted) (quoting
State of Ohio, 880 F.2d at 454 & n.34). The Tribes seek
damages for their interim lost use of injured natural
resources, and the district court erred by rejecting the
Tribes’ claims as claims for cultural resource damages
without assessing whether CERCLA authorizes damages
for lost uses of injured natural resources in cases where
the lost uses have a cultural dimension. We complete that
analysis here.
We start with CERCLA’s text. When Congress
ordered the President to promulgate regulations to guide
the assessment of natural resource damages, it included a
broad array of recoverable damages in its directive. The
regulations had to:
identify the best available procedures to
determine such damages, including both
direct and indirect injury, destruction, or
loss and shall take into consideration
factors including, but not limited to,
replacement value, use value, and ability of
the ecosystem or resource to recover.
§ 9651(c)(2) (emphasis added).
Congress did not limit the types of recoverable
natural resource damages, nor specify the types of
approved “uses.” See id.; § 9607(f)(1). Instead, it
provided that recoverable damages must include at least
those specified in the statute, including “use value.”
§ 9651(c)(2).
CERCLA does not define “use value,” id., so this
term is given its ordinary meaning. U.S. Commodity
Futures Trading Comm’n v. Monex Credit Co., 931 F.3d
966, 973 (9th Cir. 2019). Webster’s Dictionary in 1979, the
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year before CERCLA was enacted, defined “use” to
include “a method or manner of employing or applying
something” and “a particular service or end.” Webster’s
New Collegiate Dictionary 1279 (1979). Nothing in this
common meaning of the word suggests that lost uses that
have a cultural component fall outside the scope of
recoverable lost use damages authorized by the statute.
See § 9651(c)(2).
Interpreting CERCLA to authorize damages for the
lost use of injured natural resources where the lost use
has a cultural component is consistent with CERCLA’s
restorative purpose. A core pillar of the statute’s purpose
is to “assure that parties responsible for hazardous
substances [bear] the cost of remedying the conditions
they created.” Pinal Creek Grp. v. Newmont Mining
Corp., 118 F.3d 1298, 1300 (9th Cir. 1997). Although
response actions are one method towards accomplishing
this objective because they seek to remove or isolate
hazardous substances from the environment to prevent or
minimize future harm from the contamination, such
response costs are not designed to repair the harm to
natural resources that occurred while the contamination
was not yet contained, including the disruption of any
human uses of the natural resources. See § 9607(a). This
is where a cultural component of natural resource
damages must be considered.
See § 9607(a)(4)(C).
Reading in new limitations to CERCLA’s natural
resource damages provisions, such as by holding that
CERCLA does not authorize damages for the lost use of
injured natural resources where the lost use has a cultural
component, would fall short of “Congress’s intent to
[permit] recover[y] for the full damages resulting from a
release.” Nat’l Ass’n of Mfrs. v. U.S. Dep’t of Interior, 134
F.3d 1095, 1112 (D.C. Cir. 1998) (citing State of Ohio, 880
F.2d at 464). It is clear beyond doubt that Congress aimed
at providing full recovery of any damages to those persons
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harmed by the loss of natural resources. To do that,
damages occasioned by lost human activities must be
considered.
The D.C. Circuit’s opinion in State of Ohio, which the
district court acknowledged it did not consider when
dismissing the Tribes’ interim lost use claims, also
supports our holding that CERCLA authorizes damages
for the lost use of injured natural resources including
where the lost use has a cultural component. In State of
Ohio, the D.C. Circuit held that Congress intended the
regulations assessing natural resource damages to
“capture fully all aspects of loss[,]” and to “permit
trustees to derive use values for natural resources by
summing up all reliably calculated use values,” including
“‘passive’ use,” or “nonuse” values, like “existence values”
which “reflect utility derived by humans from a resource
and thus, prima facie, ought to be included in a damage
assessment.” 880 F.2d at 463–64, 476 n.77. We agree with
the D.C. Circuit that CERCLA authorizes lost use claims
based on “reliably calculated” values that “reflect utility
derived by humans from a resource,” provided that “the
trustee does not double count [the values.]” Id. at 464.
Under the D.C. Circuit’s interpretation of § 9651(c)(2),
passive uses like “existence values” are an authorized
measure of damages under the statute, and we see no
reason why the Tribes’ lost use claims, which include both
active and passive uses of injured natural resources
bearing cultural significance, would fall outside
CERCLA’s broad scope because their lost uses “reflect
utility derived by humans from a resource.” See id. at 463–
64. Whether the Tribes can prevail on their damages
claims will include questions about methodology and
whether the Tribes’ claims include any double counting,
but these factual issues can only be properly determined
after trial and full consideration of the evidence, including
expert testimony. It was error for the district court to
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dismiss the Tribes’ claims as a matter of law by
characterizing the claims as unauthorized under
CERCLA. The fact issues not yet determined require a
trial, not a summary judgment.
Next, we address the two cases the district court
relied upon in its order, which we conclude are
unpersuasive: Coeur d’Alene Tribe v. Asarco Inc., 280 F.
Supp. 2d 1094 (D. Idaho 2003) and In re Gold King Mine
Release, 669 F. Supp. 3d 1146 (D.N.M. 2023). Neither
case addresses damages for the interim lost use of injured
natural resources under CERCLA, and therefore, neither
case affects our analysis or conclusion that the Tribes’
damages claims are authorized under CERCLA.
First, in Coeur d’Alene Tribe, the district court made
a factual finding that reads like a legal conclusion, stating
that “[c]ultural uses of water and soil by the Tribe are not
recoverable as natural resource damages.” 280 F. Supp.
2d at 1107. The court did not provide any statutory
interpretation analysis or other reasoning why
interference with cultural uses due to contamination of
natural resources was not a cognizable claim for natural
resource damages under CERCLA. Id. Without any
analysis of lost use claims or discussion of the D.C.
Circuit’s opinion in State of Ohio, this case is
unpersuasive.
We also conclude that In re Gold King Mine Release
is not persuasive. In that case, the district court examined
the issue of whether certain “restorative damages claims”
brought by the Navajo Nation under state tort law were
preempted by CERCLA’s natural resource damages
provisions. 669 F. Supp. 3d at 1159–60. The damages the
Navajo Nation sought were for the stated purpose of
restoring the confidence of the Navajo Nation’s members
in the San Juan River as a natural resource. Id. at 1156.
In holding that the claims were not preempted by
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CERCLA, the district court rejected the defendant’s
characterization of the claim as one for natural resource
damages and said that, while the claim was connected to
the contamination from a gold mine spill, the restorative
damage claims sought to remedy “injuries that are
distinct from the injury to the River.” Id. at 1160. Here,
determining whether the Colvilles’ damages claims seek
to remedy injuries that are distinct from the injury to the
Upper Columbia River is a factual question that the
district court will need to determine on remand, but this
factual question is separate and apart from the legal
question we are tasked with answering on appeal:
whether CERCLA authorizes damages for the interim
lost use of natural resources when the lost use has a
cultural component. Because In re Gold King Mine
Release does not analyze the scope of natural resource
damages under CERCLA, let alone the recoverability of
damages for the interim lost use of injured natural
resources, it too does not support dismissal of the Tribes’
damages claims at the summary judgment stage. See id.
at 1157–60.
We hold that the district court reversibly erred when
it concluded that the Tribes sought damages for injuries
to cultural resources and that cultural resource damages
are not authorized under CERCLA. Nothing in the
statute or in the caselaw suggests that interim lost uses of
injured natural resources which have a cultural
component, either because cultural perspectives inform
the determination of the value of the interim lost use or
because the injured natural resources have cultural uses,
should be excluded as a matter of law from lost use
damages authorized by CERCLA under § 9651(c)(2). We
reverse the district court’s dismissal and remand the case
for trial to determine whether the Tribes have sustained
any damages from lost uses of injured natural resources.
19a
IV. CONCLUSION
For the reasons stated herein, we reverse the district
court’s grant of summary judgment rejecting the Tribes’
separate claims for natural resource damages and remand
the case for trial.
REVERSED AND REMANDED FOR TRIAL.
20a
APPENDIX B
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
JOSEPH A. PAKOOTAS, an
individual and enrolled
member of the Confederated
Tribes of the Colville
Reservation; and DONALD R.
MICHEL, an individual and
enrolled member of the
Confederated Tribes of the
Colville Reservation, and THE
CONFEDERATED TRIBES
OF THE COLVILLE
RESERVATION,
No. 2:04-CV-00256SAB
ORDER
GRANTING
RENEWED
MOTION FOR
INTERLOCUTORY
APPEAL
Plaintiffs,
and
THE STATE OF
WASHINGTON,
PlaintiffIntervenor,
v.
TECK COMINCO METALS,
LTD., a Canadian corporation,
Defendant.
Pending before the Court is Plaintiff CCT’s Renewed
Motion for Immediate Interlocutory Review Pursuant to
21a
28 U.S.C. § 1292, ECF No. 2905. Upon review, and being
fully informed, Plaintiff CCT’s motion is granted.
FACTS AND PROCEDURAL HISTORY
The facts of this case are well established. Similar to
the other claims in this dispute, Plaintiff’s cultural
resource damage/service loss1 claims arise from
discharges of slag and effluents from Defendant’s Trail,
British Columbia smelter along the Upper Columbia
River and Lake Roosevelt. Plaintiff CCT asserts that
their altered relationship with the Columbia River is a
specific cultural resource damage unto themselves.
Therefore, Plaintiff CCT’s claims are in addition to their
CERCLA natural resource damage claims which are
jointly sought with Plaintiff State of Washington. This
matter involves the potential of over $1 billion in damages.
Plaintiff CCT’s assessment of cultural resources damages
are a significant portion of this matter’s overall damages.
On February 6, 2024, this Court granted Defendant’s
motion granting partial summary judgment as to cultural
resource damages, ECF No. 2831. This Court then denied
Plaintiff CCT’s motion to reconsider concerning this issue
on April 10, 2024, ECF No. 2869. On June 20, 2024, the
Ninth Circuit of Appeals denied appeal without prejudice
and requested findings by this Court as required by
Couch, ECF No. 2896.
LEGAL STANDARD
28 U.S.C. § 1292(b) provides a process for immediate
interlocutory appeal of a courts order(s). The party
pursuing the interlocutory appeal bears the burden of
The parties disagree about the characterization of these claims.
For clarity and efficiency, this Order will refer to them as cultural
resource damages.
1
22a
demonstrating appeal is appropriate. Couch v. Telescope
Inc., 611 F.3d 629, 633 (9th Cir. 2010). Certification under
§ 1292(b) requires the district court to expressly find in
writing that all three § 1292(b) requirements are met, as
follows: (1) it involves a controlling question of law; (2) it
has a substantial ground for a difference of opinion; and
(3) immediate review will materially advance the ultimate
termination of this litigation. Id.
“To determine if a “substantial ground for difference
of opinion” exists under § 1292(b), courts must examine to
what extent the controlling law is unclear. Id. “Courts
traditionally [] find that a substantial ground for
difference of opinion exists where the circuits are in
dispute on the question and the court of appeals of the
circuit has not spoken on the point, if complicated
questions arise under foreign law, or if novel and difficult
questions of first impression are presented.” Id. A party’s
strong disagreement with the Court’s ruling or whether
settled law might be applied differently does not establish
a substantial ground for difference of opinion. Id.
Substantial grounds for a difference of opinion on a
controlling question of law are present where an order
“involves an issue over which reasonable judges might
differ and such ‘uncertainty provides a credible basis for
a difference of opinion’ on the issue,” Reese v. BP
Exploration (Alaska) Inc., 643 F.3d 681, 688 (9th Cir.
2011).
DISCUSSION
This
case
involves
the
Comprehensive
Environmental Response, Compensation, and Liability
Act (“CERCLA”), commonly known as Superfund,
which provides courses of action for environmental
remediation. CERCLA is controlling law in this matter
as it forms the foundation of Plaintiff CCT’s claims.
23a
There is a conflict between the holding in State of
Ohio which claims ‘nonuse’ services are actionable under
CERCLA and this Court’s Order determining that such
claims are not cognizable under CERCLA if they involved
damages with a cultural component. See State of Ohio v.
United States Dep’t of Interior, 880 F.2d 432, 464 (D.C.
Cir. 1989). This Court’s order granting partial summary
judgment did not address the D.C. Circuit’s ruling in
State of Ohio. This Court instead relied on district court
cases from within the Ninth Circuit finding that found
there are no express or implied references to cultural
resource damages in the language of CERCLA. See
Couer d’Alene Tribe v. Asarco, 280 F. Supp 2d 1094 (D.
Idaho 2003) and In re Gold King Mine, 669 F. Supp. 3d
1146 (D.N.M. 2023).
The scope of CERCLA’s applicability will materially
affect the outcome of this litigation in district court. This
matter involves the potential for over $1 billion in
environmental damage. Clarity will not only provide an
understanding of CERCLA’s applicability related to
cultural resource damages, but also allows the parties to
properly assess their risk in this litigation. Furthermore,
a potential Ninth Circuit order can have broader
significance on the viability of similar claims.
Immediate review will hasten completion of this longrunning litigation. This Court is concerned that this
matter could fragment into multiple trials. A singular trial
will best promote judicial efficiency and serves the
interests of justice. Determining the parameters of that
singular trial will benefit the parties and this Court.
Plaintiff CCT has demonstrated a need for
interlocutory appeal pursuant to § 1292(b).
Accordingly, IT IS HEREBY ORDERED:
24a
1. Plaintiff CCT’s Renewed Motion for Immediate
Interlocutory Review Pursuant to 28 U.S.C. § 1292, ECF
No. 2905, is GRANTED.
2. The cultural resource damages dispute under
CERCLA meets the three-factor test outlined in Couch v.
Telescope Inc. Therefore, the issues related to this
Court’s Order Granting Defendant’s Motion for Partial
Summary Judgment on Cultural Resource Damages,
ECF No. 2831, is certified for immediate interlocutory
appeal pursuant to 28 U.S.C. § 1292(b).
IT IS SO ORDERED. The District Court Clerk is
hereby directed to file this Order and provide copies to
counsel.
DATED this 9th day of July 2024.
/s/ Stanley A. Bastian
Stanley A. Bastian
Chief United States District Judge
25a
APPENDIX C
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
JOSEPH A. PAKOOTAS,
an individual and enrolled
member of the
Confederated Tribes of the
Colville Reservation; and
DONALD R. MICHEL, an
individual and enrolled
member of the
Confederated Tribes of the
Colville Reservation, and
THE CONFEDERATED
TRIBES OF THE
COLVILLE
RESERVATION,
Plaintiffs,
and
THE STATE OF
WASHINGTON,
PlaintiffIntervenor,
v.
TECK COMINCO
METALS, LTD., a
Canadian corporation,
Defendant.
No. 2:04-CV-00256SAB
ORDER DENYING
MOTION FOR
RECONSIDERATION
26a
Before the Court is Plaintiff Confederated Tribes of
the Colville Reservation’s Motion for Reconsideration or
in the Alternative for Immediate Review Pursuant to
28 U.S.C. § 1292, ECF No. 2838.
Plaintiff Confederated Tribes of the Colville
Reservation (CCT) requests that the Court reconsider its
Order Granting Defendant’s Motion for Partial Summary
Judgment on Cultural Resource Damages, ECF No. 2831,
or certify the controlling issues of law for appeal to the
Ninth Circuit Court of Appeals pursuant to 28 U.S.C.
§ 1292(b).
CCT argues that CCT had not previously asserted
any claims for “cultural resource damages” under the
Comprehensive
Environmental
Response,
Compensation, and Liability Act (CERCLA) and Teck’s
motion encouraged this error by conflating resource
injury and resulting service loss by labelling them both
“cultural.” CTT states that this framing misconstrued
CCT’s natural resource damage claim and distracted this
Court from the regulatory framework and supporting
authority. Upon review, and being fully informed, this
Court disagrees and denies the motion and certifies the
controlling issues of law for appeal pursuant to 28 U.S.C.
§ 1292(b).
Reconsideration is an extraordinary remedy, to be
used sparingly in the interests of finality and conservation
of judicial resources.” Kona Enterprises, Inc. v. Estate of
Bishop, 229 F.3d 877, 890 (9th Cir. 2000). A motion for
reconsideration may be reviewed under either Federal
Rule of Civil Procedure 59(e) (motion to alter or amend a
judgment) or 60(b) (relief from judgment). Sch. Dist. No.
1J v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). “A
district court may properly reconsider its decision if it ‘(1)
is presented with newly discovered evidence, (2)
committed clear error or the initial decision was
27a
manifestly unjust, or (3) if there is an intervening change
in controlling law.’” Smith v. Clark Cnty. Sch. Dist., 727
F.3d 950, 955 (9th Cir. 2013) (quoting Sch. Dist. No. 1J, 5
F.3d at 1263). “There may also be other, highly unusual,
circumstances warranting reconsideration.” Sch. Dist.
No. 1J, 5 F.3d at 1263. Whether to grant a motion for
reconsideration is within the sound discretion of the court.
Navajo Nation v. Confederated Tribes and Bands of the
Yakima Nation, 331 F.3d 1041, 1046 (9th Cir. 2003).
Plaintiff did not meet the standard for
reconsideration outlined in case law. No new evidence
was discovered, nor did the Court commit clear error or
make an initial determination that was manifestly unjust,
and there was not an intervening change in controlling
law. Whether termed cultural resource damages or lost
services, this is not the type of loss contemplated by
Congress when passing and amending CERCLA.
Therefore, CCT’s motion for reconsideration is denied
and the Court certifies this issue for appeal pursuant to
28 U.S.C. § 1292(b)
Accordingly, IT IS HEREBY ORDERED:
1. Plaintiff Confederated Tribes of the Colville
Reservation’s Motion for Reconsideration or in the
Alternative for Immediate Review Pursuant to 28 U.S.C.
§ 1292, ECF No. 2838, is DENIED.
2. The controlling issues of law related to service
loss/cultural resource damages under CERCLA are
certified for appeal pursuant to 28 U.S.C. § 1292(b).
IT IS SO ORDERED. The District Court Clerk is
hereby directed to file this Order and provide copies to
counsel.
28a
DATED this 10th day of April 2024.
/s/ Stanley A. Bastian
Stanley A. Bastian
Chief United States District Judge
29a
APPENDIX D
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
JOSEPH A. PAKOOTAS, an
individual and enrolled member
of the Confederated Tribes of
the Colville Reservation; and
DONALD R. MICHEL, an
individual and enrolled member
of the Confederated Tribes of
the Colville Reservation, and
THE CONFEDERATED
TRIBES OF THE COLVILLE
RESERVATION,
Plaintiffs,
and
No. 2:04-CV-00256SAB
ORDER
GRANTING
DEFENDANT’S
MOTION FOR
PARTIAL
SUMMARY
JUDGMENT ON
CULTURAL
RESOURCE
DAMAGES
THE STATE OF
WASHINGTON,
PlaintiffIntervenor,
v.
TECK COMINCO METALS,
LTD., a Canadian corporation,
Defendant.
Before the Court is Defendant Teck Cominco Metals,
Ltd.’s Motion for Partial Summary Judgment on the
Colville Tribes’ “Tribal Service Loss” Claim, ECF No.
30a
2777. The Court held oral argument on the motion on
December 14, 2023 in Spokane, Washington.
Plaintiff Confederated Tribes of the Colville
Reservation (“Plaintiff”) proposes three “tribal service
loss”1 damage measurements under the Comprehensive
Environmental Response, Compensation, and Liability
Act (“CERCLA”). Defendant argues Plaintiff’s claims for
cultural resource damages fail as a matter of law and are
thus not recoverable under CERCLA. The Court finds
there are no disputes of material fact that preclude partial
summary judgment as to cultural resource damages and,
having considered the parties’ briefing, case record,
applicable law, the Court concludes that the cultural
resource damages are not recoverable as a matter of law.
Therefore, Defendant’s motion for partial summary
judgment is granted.
FACTS
The facts of this case are well established. Similar to
the other claims in this dispute, Plaintiff’s cultural
resource damage claims arise from discharges of slag and
effluents from Defendant’s Trail, British Columbia
smelter along the Upper Columbia River and Lake
Roosevelt (“the Columbia River”). Plaintiff asserts that
their altered relationship with the Columbia River is a
specific cultural resource damage unto themselves.
Therefore, Plaintiff’s claims are in addition to their
CERCLA natural resource damage claims which are
jointly sought with Plaintiff State of Washington.
Plaintiff utilized three separate approaches to
develop monetary proof of cultural resource damages.
Plaintiff’s first damage measure is a $114.6 million
The Court will refer to ‘tribal service loss’ as “Cultural Resource
Damages” throughout this Order.
1
31a
“Restoration Plan” which seeks to address erosion of
Plaintiff’s culture. The Restoration Plan seeks to, among
other initiatives, fund new cultural facilities, programs,
and purchase land adjacent to the Columbia River.
Second, Plaintiff’s experts conducted a survey of damages
concerning “cultural disconnection from the [Columbia]
River” which asked respondents to choose between two
hypothetical options (a given amount of sediment removal
or the purchase of a given amount of land. The survey
concluded that the value of the “service losses” is between
$165 million and $525 million. Finally, Plaintiff proposes
damages of $9 million to $13.6 million for alleged cultural
fishing losses.
LEGAL STANDARD
Summary judgment is appropriate “if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). There is no genuine issue for
trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict in that party’s
favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986). The moving party has the initial burden of showing
the absence of a genuine issue of fact for trial. Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving
party meets its initial burden, the non-moving party must
go beyond the pleadings and “set forth specific facts
showing that there is a genuine issue for trial.” Anderson,
477 U.S. at 248.
In addition to showing there are no questions of
material fact, the moving party must also show it is
entitled to judgment as a matter of law. Smith v. Univ. of
Wash. Law Sch., 233 F.3d 1188, 1193 (9th Cir. 2000). The
moving party is entitled to judgment as a matter of law
when the non-moving party fails to make a sufficient
showing on an essential element of a claim on which the
32a
non-moving party has the burden of proof. Celotex, 477
U.S. at 323. The non-moving party cannot rely on
conclusory allegations alone to create an issue of material
fact. Hansen v. United States, 7 F.3d 137, 138 (9th Cir.
1993). When considering a motion for summary judgment,
a court may neither weigh the evidence nor assess
credibility; instead, “the evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn
in his favor.” Anderson, 477 U.S. at 255.
DISCUSSION
CERCLA creates a right to recover natural resource
damages for “injury to, destruction of, or loss of natural
resources, including the reasonable costs of assessing
such injury, destruction, or loss resulting from such a
release.” 42 U.S.C. § 9607(a)(4)(C). Natural resource
damages, under CERCLA, are to compensate the public
by providing for the recovery of the funds that are
necessary – and by law must actually be used – to restore
or replace injured natural resources. 42 U.S.C.
§ 9607(f)(1).
CERCLA defines natural resources as the following:
Natural resources or resources means land,
fish, wildlife, biota, air, water, ground
water, drinking water supplies, and other
such resources belonging to, managed by,
held in trust by, appertaining to, or
otherwise controlled by the United States
(including the resources of the fishery
conservation zone established by the
Magnuson Fishery Conservation and
Management Act of 1976), any State or local
government, any foreign government, any
Indian tribe, or, if such resources are
subject to a trust restriction on alienation,
33a
any member of an Indian tribe. These
natural resources have been categorized
into the following five groups: Surface
water resources, ground water resources,
air resources, geologic resources, and
biological resources.
43 C.F.R. § 11.14(z) (emphasis added).
The only courts to speak directly to the recovery of
cultural resource damages, rejected the concept. See
Coeur d’Alene Tribe v. Asarco, Inc., 280 F. Supp. 2d 1094,
1107 (D. Idaho 2003) (“cultural uses of water and soil by
the tribe are not recoverable as natural resource
damages”); see also In re Gold King Mine Release in San
Juan Cnty., Colorado, on Aug. 5, 2015, No. 16-CV-931, --F. Supp. 3d ---, 2023 WL 2914718 (D.N.M. Apr. 12, 2023)
(finding that cultural resource damage claims, such as the
lost confidence in a river, are not natural resource
damages and therefore not recoverable by CERCLA).
There is no express or implied reference to cultural
resources in the language of CERCLA. Whether
reviewing CERCLA itself or relevant regulations or case
law, there is no reference to ‘cultural’ or ‘tribal service’
damages. Neither the statute nor the regulations
reference a cultural or tribal ‘connection’ or ‘relationship’
with a particular resource, let alone possible recovery
from loss or damage to that connection or relationship.
Though the impacts of Defendant’s smelter facility’s
environmental contamination on the Columbia River are
serious, cultural resource damages are simply not
recoverable under CERCLA. Therefore, the Court
grants Defendant’s motion for partial summary judgment
as to cultural resource damages.
Accordingly, IT IS HEREBY ORDERED:
34a
1. Defendant’s Teck Metal Ltd.’s Motion for Partial
Summary Judgment on the Colville Tribes’ “Tribal
Service Loss” Claim, ECF No. 2777, is GRANTED.
IT IS SO ORDERED. The District Court Clerk is
hereby directed to enter this Order and to provide copies
to counsel.
DATED this 6th day of February 2024.
/s/ Stanley A. Bastian
Stanley A. Bastian
Chief United States District Judge
35a
APPENDIX E
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CONFEDERATED TRIBES
OF THE COLVILLE
RESERVATION,
Plaintiff - Appellant,
and
JOSEPH A. PAKOOTAS, an
individual and enrolled member
of the Confederated Tribes of
the Colville Reservation and
DONALD R. MICHEL, an
individual and enrolled member
of the Confederated Tribes of
the Colville Reservation,
Plaintiffs,
STATE OF WASHINGTON,
Intervenor-Plaintiff,
v.
TECK COMINCO METALS
LTD, a Canadian corporation,
Defendant - Appellee.
No. 24-5565
D.C. No.
2:04-cv-00256-SAB
Eastern District of
Washington,
Spokane
ORDER
36a
Before: GOULD and PAEZ, Circuit Judges, and
McSHANE, Chief District Judge.*
The full court has been advised of DefendantAppellee’s Petition for Rehearing En Banc and no judge
of the court has requested a vote on the Petition for
Rehearing En Banc. Fed. R. App. P. 40. The Petition for
Rehearing En Banc is DENIED.
The Honorable Michael J. McShane, United States Chief District
Judge for the District of Oregon, sitting by designation.
*
37a
APPENDIX F
§ 9601. Definitions
For purpose of this subchapter—
...
(6) The term “damages” means damages for injury or
loss of natural resources as set forth in section 9607(a) or
9611(b) of this title.
...
(14) The term “hazardous substance” means (A) any
substance designated pursuant to section 311(b)(2)(A) of
the Federal Water Pollution Control Act [33 U.S.C.
1321(b)(2)(A)], (B) any element, compound, mixture,
solution, or substance designated pursuant to section 9602
of this title, (C) any hazardous waste having the
characteristics identified under or listed pursuant to
section 3001 of the Solid Waste Disposal Act [42 U.S.C.
6921] (but not including any waste the regulation of which
under the Solid Waste Disposal Act [42 U.S.C. 6901 et
seq.] has been suspended by Act of Congress), (D) any
toxic pollutant listed under section 307(a) of the Federal
Water Pollution Control Act [33 U.S.C. 1317(a)], (E) any
hazardous air pollutant listed under section 112 of the
Clean Air Act [42 U.S.C. 7412], and (F) any imminently
hazardous chemical substance or mixture with respect to
which the Administrator has taken action pursuant to
section 7 of the Toxic Substances Control Act [15 U.S.C.
2606]. The term does not include petroleum, including
crude oil or any fraction thereof which is not otherwise
specifically listed or designated as a hazardous substance
under subparagraphs (A) through (F) of this paragraph,
and the term does not include natural gas, natural gas
38a
liquids, liquefied natural gas, or synthetic gas usable for
fuel (or mixtures of natural gas and such synthetic gas).
...
(16) The term “natural resources” means land, fish,
wildlife, biota, air, water, ground water, drinking water
supplies, and other such resources belonging to, managed
by, held in trust by, appertaining to, or otherwise
controlled by the United States (including the resources
of the fishery conservation zone established by the
Magnuson-Stevens
Fishery
Conservation
and
Management Act [16 U.S.C. 1801 et seq.]), any State or
local government, any foreign government, any Indian
tribe, or, if such resources are subject to a trust restriction
on alienation, any member of an Indian tribe.
§ 9607. Liability
(a) Covered persons; scope; recoverable costs and
damages; interest rate; “comparable maturity”
date
Notwithstanding any other provision or rule of law,
and subject only to the defenses set forth in subsection (b)
of this section—
(1) the owner and operator of a vessel or a facility,
(2) any person who at the time of disposal of any
hazardous substance owned or operated any facility at
which such hazardous substances were disposed of,
(3) any person who by contract, agreement, or
otherwise arranged for disposal or treatment, or
arranged with a transporter for transport for disposal or
treatment, of hazardous substances owned or possessed
by such person, by any other party or entity, at any
facility or incineration vessel owned or operated by
39a
another party or entity and containing such hazardous
substances, and
(4) any person who accepts or accepted any hazardous
substances for transport to disposal or treatment
facilities, incineration vessels or sites selected by such
person, from which there is a release, or a threatened
release which causes the incurrence of response costs, of
a hazardous substance, shall be liable for—
(A) all costs of removal or remedial action incurred
by the United States Government or a State or an
Indian tribe not inconsistent with the national
contingency plan;
(B) any other necessary costs of response incurred
by any other person consistent with the national
contingency plan;
(C) damages for injury to, destruction of, or loss of
natural resources, including the reasonable costs of
assessing such injury, destruction, or loss resulting
from such a release; and
(D) the costs of any health assessment or health
effects study carried out under section 9604(i) of this
title.
The amounts recoverable in an action under this section
shall include interest on the amounts recoverable under
subparagraphs (A) through (D). Such interest shall
accrue from the later of (i) the date payment of a specified
amount is demanded in writing, or (ii) the date of the
expenditure concerned. The rate of interest on the
outstanding unpaid balance of the amounts recoverable
under this section shall be the same rate as is specified for
interest on investments of the Hazardous Substance
Superfund established under subchapter A of chapter 98
of title 26. For purposes of applying such amendments to
interest under this subsection, the term “comparable
40a
maturity” shall be determined with reference to the date
on which interest accruing under this subsection
commences.
...
(f) Natural resources liability; designation of public
trustees of natural resources
(1) Natural resources liability
In the case of an injury to, destruction of, or loss of
natural resources under subparagraph (C) of
subsection (a) liability shall be to the United States
Government and to any State for natural resources
within the State or belonging to, managed by,
controlled by, or appertaining to such State and to any
Indian tribe for natural resources belonging to,
managed by, controlled by, or appertaining to such
tribe, or held in trust for the benefit of such tribe, or
belonging to a member of such tribe if such resources
are subject to a trust restriction on alienation:
Provided, however, That no liability to the United
States or State or Indian tribe shall be imposed under
subparagraph (C) of subsection (a), where the party
sought to be charged has demonstrated that the
damages to natural resources complained of were
specifically identified as an irreversible and
irretrievable commitment of natural resources in an
environmental impact statement, or other comparable
environment analysis, and the decision to grant a
permit or license authorizes such commitment of
natural resources, and the facility or project was
otherwise operating within the terms of its permit or
license, so long as, in the case of damages to an Indian
tribe occurring pursuant to a Federal permit or license,
the issuance of that permit or license was not
inconsistent with the fiduciary duty of the United
41a
States with respect to such Indian tribe. The
President, or the authorized representative of any
State, shall act on behalf of the public as trustee of such
natural resources to recover for such damages. Sums
recovered by the United States Government as trustee
under this subsection shall be retained by the trustee,
without further appropriation, for use only to restore,
replace, or acquire the equivalent of such natural
resources. Sums recovered by a State as trustee under
this subsection shall be available for use only to
restore, replace, or acquire the equivalent of such
natural resources by the State. The measure of
damages in any action under subparagraph (C) of
subsection (a) shall not be limited by the sums which
can be used to restore or replace such resources. There
shall be no double recovery under this chapter for
natural resource damages, including the costs of
damage assessment or restoration, rehabilitation, or
acquisition for the same release and natural resource.
There shall be no recovery under the authority of
subparagraph (C) of subsection (a) where such
damages and the release of a hazardous substance
from which such damages resulted have occurred
wholly before December 11, 1980.
(2) Designation of Federal and State officials
(A) Federal
The President shall designate in the National
Contingency Plan published under section 9605 of
this title the Federal officials who shall act on behalf
of the public as trustees for natural resources under
this chapter and section 1321 of title 33. Such
officials shall assess damages for injury to,
destruction of, or loss of natural resources for
purposes of this chapter and such section 1321 of
title 33 for those resources under their trusteeship
42a
and may, upon request of and reimbursement from
a State and at the Federal officials’ discretion,
assess damages for those natural resources under
the State’s trusteeship.
(B) State
The Governor of each State shall designate State
officials who may act on behalf of the public as
trustees for natural resources under this chapter
and section 1321 of title 33 and shall notify the
President of such designations. Such State officials
shall assess damages to natural resources for the
purposes of this chapter and such section 1321 of
title 33 for those natural resources under their
trusteeship.
(C) Rebuttable presumption
Any determination or assessment of damages to
natural resources for the purposes of this chapter
and section 1321 of title 33 made by a Federal or
State trustee in accordance with the regulations
promulgated under section 9651(c) of this title shall
have the force and effect of a rebuttable
presumption on behalf of the trustee in any
administrative or judicial proceeding under this
chapter or section 1321 of title 33.
SUBCHAPTER III—MISCELLANEOUS
PROVISIONS
§ 9651. Reports and studies
...
(c) Regulations respecting assessment of damages to
natural resources
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(1) The President, acting through Federal officials
designated by the National Contingency Plan published
under section 9605 of this title, shall study and, not later
than two years after December 11, 1980, shall promulgate
regulations for the assessment of damages for injury to,
destruction of, or loss of natural resources resulting from
a release of oil or a hazardous substance for the purposes
of this chapter and section 1321(f)(4) and (5) of title 33.
Notwithstanding the failure of the President to
promulgate the regulations required under this
subsection on the required date, the President shall
promulgate such regulations not later than 6 months after
October 17, 1986.
(2) Such regulations shall specify (A) standard
procedures for simplified assessments requiring minimal
field observation, including establishing measures of
damages based on units of discharge or release or units of
affected area, and (B) alternative protocols for conducting
assessments in individual cases to determine the type and
extent of short- and long-term injury, destruction, or loss.
Such regulations shall identify the best available
procedures to determine such damages, including both
direct and indirect injury, destruction, or loss and shall
take into consideration factors including, but not limited
to, replacement value, use value, and ability of the
ecosystem or resource to recover.
(3) Such regulations shall be reviewed and revised as
appropriate every two years.
...
(e) Adequacy of existing common law and statutory
remedies
(1) In order to determine the adequacy of existing
common law and statutory remedies in providing legal
redress for harm to man and the environment caused by
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the release of hazardous substances into the environment,
there shall be submitted to the Congress a study within
twelve months of December 11, 1980.
(2) This study shall be conducted with the assistance of
the American Bar Association, the American Law
Institute, the Association of American Trial Lawyers, and
the National Association of State Attorneys General with
the President of each entity selecting three members
from each organization to conduct the study. The study
chairman and one reporter shall be elected from among
the twelve members of the study group.
(3) As part of their review of the adequacy of existing
common law and statutory remedies, the study group
shall evaluate the following:
(A) the nature, adequacy, and availability of existing
remedies under present law in compensating for harm
to man from the release of hazardous substances;
(B) the nature of barriers to recovery (particularly
with respect to burdens of going forward and of proof
and relevancy) and the role such barriers play in the
legal system;
(C) the scope of the evidentiary burdens placed on
the plaintiff in proving harm from the release of
hazardous substances, particularly in light of the
scientific uncertainty over causation with respect to—
(i) carcinogens, mutagens, and teratogens, and
(ii) the human health effects of exposure to low doses
of hazardous substances over long periods of time;
(D) the nature and adequacy of existing remedies
under present law in providing compensation for
damages to natural resources from the release of
hazardous substances;
45a
(E) the scope of liability under existing law and the
consequences, particularly with respect to obtaining
insurance, of any changes in such liability;
(F) barriers to recovery posed by existing statutes
of limitations.
(4) The report shall be submitted to the Congress with
appropriate recommendations. Such recommendations
shall explicitly address—
(A) the need for revisions in existing statutory or
common law, and
(B) whether such revisions should take the form of
Federal statutes or the development of a model code
which is recommended for adoption by the States.
(5) The Fund shall pay administrative expenses incurred
for the study. No expenses shall be available to pay
compensation, except expenses on a per diem basis for the
one reporter, but in no case shall the total expenses of the
study exceed $300,000.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.