Amicus Curiae Brief — Teck Metals Ltd., fka Teck Cominco Metals Ltd., a Canadian corporation, Petitioner v. Confederated Tribes of the Colville Reservation

No. 26-130

In the Supreme Court of the United States

_________

T ECK M ETALS L TD.,

Petitioner,

v.

T HE C ONFEDERATED T RIBES OF THE

COLVILLE R ESERVATION ,

Respondent.

_________

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

_________

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

_________

J EFFREY W. MC C OY

D AVID MCD ONALD

Pacific Legal Foundation

Counsel of Record

1745 Shea Center Drive

3100 Clarendon Blvd.

Suite 400

Suite 1000

Highlands Ranch, CO 80129 Arlington, VA 22201

(202) 888-6881

dmcdonald@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation

QUESTION PRESENTED

Whether CERCLA authorizes damages for the

felt loss of a cultural connection to natural resources.

ii

TABLE OF CONTENTS

Identity and interest of amicus curiae ....................... 1

Introduction and summary of argument ................... 1

Argument .................................................................... 2

I. This case presents a matter of substantial

national importance ............................................ 2

a The Ninth Circuit’s Decision Is Inconsistent

with the Text and History of CERCLA and

Represents a Significant Breach with

Precedent ....................................................... 2

i. The Ninth Circuit’s decision is

inconsistent with CERCLA’s plain

text and statutory text ............................. 2

ii. The Ninth Circuit created a new class

of damages beyond the text ................... 10

b. The Ninth Circuit’s decision creates

uncertainty, discouraging investments

and harming local communities that

depend on them ........................................... 13

II. The Ninth Circuit’s decision has created

a circuit split this Court must resolve ............. 15

Conclusion ................................................................. 18

iii

TABLE OF AUTHORITIES

Cases:

American Tel. & Tel. Co. v.

Connecticut Light & Power Co.,

470 F. Supp. 105 (D. Conn. 1979) ......................... 9

Atl. Richfield Co. v. Christian,

590 U.S. 1 (2020) ............................................ 13-14

Begay v. United States,

553 U.S. 137 (2008) ............................................... 5

Botany Worsted Mills v. United States,

278 U.S. 282 (1929) ............................................. 11

Burlington N. & Santa Fe Ry. Co. v. United States,

556 U.S. 599 (2009) ........................................... 3, 7

Coeur d’Alene Tribe v. Asarco, Inc.,

280 F. Supp. 2d 1094 (D. Idaho 2003) ................ 12

Confederated Tribes of the Colville

Reservation v. Teck Cominco Metals Ltd.,

153 F.4th 947 (9th Cir. 2025) ................................ 9

Consumer Prod. Safety Comm’n v.

GTE Sylvania, Inc.,

447 U.S. 102 (1980) ............................................. 13

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) ............................................. 14

Fischer v. United States,

603 U.S. 480 (2024) ............................................ 4-6

Gustafson v. Alloyd Co.,

513 U.S. 561 (1995) ............................................... 5

Hallstrom v. Tillamook Cnty.,

493 U.S. 20 (1989) ............................................... 13

In re Gold King Mine Release in San Juan Cnty.,

669 F. Supp. 3d 1146 (D.N.M. 2023)................... 12

iv

Lackey v. Stinnie,

604 U.S. 192 (2025) ............................................ 7-8

N.M. Cattle Growers’ Ass’n v.

U.S. Fish & Wildlife Serv.,

148 F.4th 755 (D.C. Cir. 2025) .............................. 1

New Mexico v. General Elec. Co.,

467 F.3d 1223 (10th Cir. 2006) ..................... 12, 16

Ohio v. Dep’t of the Interior,

880 F.2d 432 (D.C. Cir. 1989) .................. 10, 16-17

Pakootas v. Teck Cominco Metals, Ltd.,

646 F.3d 1214 (9th Cir. 2011) ............................. 15

Pakootas v. Teck Cominco Metals, Ltd.,

No. 2:04-CV-00256-SAB,

2024 WL 457769 (E.D. Wash. Feb. 6, 2024) ....... 11

Payne v. Tennessee,

501 U.S. 808 (1991) ............................................. 14

Planned Parenthood of Se. Pennsylvania v. Casey,

505 U.S. 833 (1992) ............................................. 14

Puerto Rico v. SS Zoe Colocotroni,

628 F.2d 652 (1st Cir. 1980) ................................ 16

Sackett v. EPA,

598 U.S. 651 (2023) ............................................... 1

Transamerica Mortg. Advisors, Inc. v. Lewis,

444 U.S. 11 (1979) ............................................... 11

United States v. 50 Acres of Land,

469 U.S. 24 (1984) ............................................... 10

United States v. Williams,

553 U.S. 285 (2008) ............................................... 4

Utility Air Regulatory Group v. EPA,

573 U.S. 302 (2014) ............................................. 13

Wash. State Dep’t of Social & Health Servs. v.

Guardianship Estate of Keffeler,

537 U.S. 371 (2003) ............................................... 5

v

West Virginia v. EPA,

597 U.S. 697 (2022) ............................................. 13

Whitman v. American Trucking Ass’ns,

531 U.S. 457 (2001) ............................................... 7

Yates v. United States,

574 U.S. 528 (2015) ............................................... 5

Statutes:

16 U.S.C. §§ 470aa-470mm ........................................ 8

18 U.S.C. § 1512(c)(1) ................................................. 6

18 U.S.C. § 1512(c)(2) ................................................. 6

18 U.S.C. § 1519 .......................................................... 5

25 U.S.C. §§ 3001-3013 ............................................... 8

42 U.S.C. § 1981a(b) ................................................... 8

42 U.S.C. § 2000bb ...................................................... 8

42 U.S.C. § 9601(16) ............................................... 4, 6

42 U.S.C. § 9607(a)(4)(C) ..................................... 3-4, 6

42 U.S.C. § 9607(f)(1) ..................................... 3-4, 6, 11

42 U.S.C. § 9626 .......................................................... 7

54 U.S.C. §§ 300101-307108 ....................................... 8

54 U.S.C. §§ 320301-320303 ....................................... 8

Pub. L. No. 96–510,

94 Stat. 2767 (Dec. 11, 1980) ................................ 3

Pub. L. No. 115–141,

132 Stat. 348 (Mar. 23, 2018) ................................ 3

Regulations:

43 C.F.R. § 11.35(b)(2) (1987) ................................... 17

43 C.F.R. § 11.83 ......................................................... 9

vi

Rules:

Sup. Ct. R. 37.2 ........................................................... 1

Sup. Ct. R. 37.6 ........................................................... 1

Other Authorities:

Abrams, Robert H., Superfund and the

Evolution of Brownfields, 21 Wm. & Mary

Envtl. L. & Pol’y Rev. 265 (1997) ........................ 15

Amicus Br. of Nez Perce Tribe et al.,

C.A. Dkt. 26, Pakootas v. Teck

Cominco Metals Ltd., No. 24-5565

(9th Cir. Dec. 12, 2024) ....................................... 14

IDENTITY AND INTEREST OF

AMICUS CURIAE 1

Founded in 1973, Amicus Curiae Pacific Legal

Foundation (“PLF”) is the nation’s leading public interest legal organization that advocates for limited

government, property rights, and the separation of

powers, particularly when overreaching environmental regulation threatens these principles. Accordingly, PLF attorneys have been counsel of record in

many cases addressing the intersection of property

rights and environmental protection.2

INTRODUCTION AND

SUMMARY OF ARGUMENT

In its decision below, the Ninth Circuit blessed Respondent’s attempt to use the Comprehensive Environmental Response, Compensation, and Liability Act

(“CERCLA”)’s provisions allowing government entities to seek damages from polluters to fund environmental restoration projects as a way to obtain a

1 Pursuant to Rule 37.2, Amicus Curiae provided timely notice

to all parties by emailing all counsel of record. Pursuant to Rule

37.6, Amicus Curiae affirms that no counsel for any party

authored this brief in whole or in part, and no counsel or party

made a monetary contribution intended to fund the preparation

or submission of this brief. No person other than Amicus Curiae,

their members, or their counsel made a monetary contribution to

its preparation or submission.

2 See Sackett v. EPA, 598 U.S. 651 (2023) (representing

private landowners in a challenge to the EPA’s regulation of

property under the Clean Water Act lacking a direct surface

connection to waters of the United States); N.M. Cattle Growers’

Ass’n v. U.S. Fish & Wildlife Serv., 148 F.4th 755 (D.C. Cir. 2025)

(representing ranchers in a challenge to the United States Fish

and Wildlife Service’s denial of a petition to delist the

southwestern willow flycatcher on taxonomic grounds).

2

general windfall for vague and unquantifiable injuries

to their members’ “unique relationship” with the Columbia River. See Pet. at 3. This award of “cultural

resource” damages is untethered from restoration or

replacement costs, or from interim loss of economic

value of the use of the damaged natural resources.

What’s more, it is also untethered from both the plain

text of CERCLA and what existing precedent exists on

the issue.

The Petition at issue concerns an important question of federal law that implicates the Constitution

and has divided the Circuit Courts of Appeal. Furthermore, the Ninth Circuit’s decision, if allowed to

stand, will have nationwide consequences that demand this Court’s immediate attention.

ARGUMENT

I.

This Case Presents A Matter Of Substantial

National Importance

a. The Ninth Circuit’s Decision Is Inconsistent With The Text And History Of

CERCLA And Represents A Significant

Breach With Precedent

A reasonable examination of CERCLA’s plain text,

especially when read within the statute’s broader statutory context, does not support the availability of cultural resource damages of the sort Respondent seeks.

i.

The Ninth Circuit’s decision is inconsistent with CERCLA’s plain text and

statutory context

CERCLA was enacted by Congress in 1980 “to provide for liability, compensation, cleanup, and emergency response for hazardous substances released into

3

the environment and the cleanup of inactive hazardous waste disposal sites.” CERCLA, Pub. L. No. 96–

510, 94 Stat. 2767 (Dec. 11, 1980), as amended by Pub.

L. No. 115–141, 132 Stat. 348 (Mar. 23, 2018). The

statute serves two primary purposes: to ensure mitigation and remediation of environment damaged by

hazardous substances released by a particular entity

or entities, and to provide adequate compensation to

individuals for the economic harm suffered as a result

of said environmental damages. See Burlington N. &

Santa Fe Ry. Co. v. United States, 556 U.S. 599, 602

(2009) (explaining that CERCLA was enacted “in response to the serious environmental and health risks

posed by industrial pollution,” and “designed to promote the timely cleanup of hazardous waste sites and

to ensure that the costs of such cleanup efforts were

borne by those responsible for the contamination.”)

(internal quotation omitted).

CERCLA’s remedial component serves primarily as

a mechanism to incentivize trustees like Respondent

to take on some of the burden of enforcement that

would otherwise fall on the federal government, which

is apparent from CERCLA’s strict rule that damages

may only be used for environmental remediation purposes. Natural resource damages under CERCLA are

not standard compensatory damages as ordinarily

available in a tort action. See 42 U.S.C. § 9607(f)(1).

They are certainly not private damages to assuage

subjective pain and suffering.

CERCLA states that the United States, the states,

and the Indian tribes may sue as natural-resource

trustees to recover damages from liable parties whose

releases of hazardous substances caused “injury to,

destruction of, or loss of natural resources” “belonging

to, managed by, controlled by, or appertaining to” the

4

respective sovereign. 42 U.S.C. § 9607(a)(4)(C), (f)(1).

CERCLA damages are available for “use only to restore, replace, or acquire the equivalent of such natural resources,” id. § 9607(f)(1), defined as “land, fish,

wildlife, biota, air, water, ground water, drinking water supplies, and other such resources.” Id. § 9601(16).

The statute makes no mention whatsoever of culture,

religion, spirituality, historical significance, or any

other similarly intangible value.

The Ninth Circuit accepted the argument below

that the Tribes were not seeking redress for injury to

some inchoate cultural resources, but ordinary damages for harm done to their natural resources as defined in section 9607(f)(1). See Pet. App. at 12a-18a.

Under this theory, the relief Respondent seeks is not

“cultural resource[s] damages,” so much as damages

to the use value of their natural resources, such as are

commonly granted by courts in cases where a competitive market for the resources does not exist for a market-based valuation to be based on. Id. at 18a. This

mistakes, however, both the nature of the “natural resources” protected under CERCLA and the existing

precedent on use-value.

The damaged natural resources Respondent is entitled to receive compensation for are defined within

CERCLA itself, which provides a bounded list of specific physical resources the statute applies to. See 42

U.S.C. § 9607(f)(1). While such a list is not exhaustive, it is also not open-ended and includes inherent

limitations to its application. Under the noscitur a sociis canon of statutory construction, “a word is ‘given

more precise content by the neighboring words with

which it is associated.’” Fischer v. United States, 603

U.S. 480, 487 (2024) (quoting United States v. Williams, 553 U.S. 285, 294 (2008)). The closely related

5

ejusdem generis canon counsels that, when a specific,

itemized list is followed by a general, “catch-all”

phrase, the catch-all is interpreted to include only

items that share the same characteristics as the listed

items. See Yates v. United States, 574 U.S. 528, 54546 (2015) (“[W]here general words follow specific

words in a statutory enumeration, the general words

are [usually] construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” (quoting Wash. State Dep’t of

Social & Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 384 (2003) (alterations in original)). Together, these canons help courts “avoid ascribing to one word a meaning so broad that it is inconsistent with” “the company it keeps.” Fischer, 603

U.S. at 487 (quoting Gustafson v. Alloyd Co., 513 U.S.

561, 575 (1995)).

In Yates, this Court was asked to consider whether

a fisherman throwing undersized fish overboard to

evade government inspection had violated the Sarbanes-Oxley Act’s prohibition on the destruction or

concealment of “any record, document, or tangible object with the intent to impede, obstruct, or influence”

a federal investigation. 574 U.S. at 531 (quoting 18

U.S.C. § 1519). Invoking the ejusdem generis and

noscitur a sociis canons, the Court held that it did not.

Id. at 546-47. While the term “tangible object,” read

in isolation, would generally include a fish, the term

cannot be construed in a vacuum. In providing a list

of illustrative examples, Congress must have intended

a more limited interpretation—otherwise “it is hard to

see why it would have needed to include the examples

at all.” Id. at 545-46 (quoting Begay v. United States,

553 U.S. 137, 142 (2008)). “Tangible object,” when

preceded by “records” and “documents,” and when

6

contained within a statute regulating financial transactions that is not otherwise concerned with the fishing (or any other) industry, does not reasonably encompass undersized fish.

Similarly, in Fischer, this Court was asked to consider whether Sarbanes-Oxley, which made it a crime

to “alter[], destroy[], mutilate[], or conceal[] a record,

document, or other object . . . with the intent to impair

the object’s integrity or availability for use in an official proceeding” or “otherwise obstruct[], influence[],

or impede[] any official proceeding,” applied to the

conduct of a defendant who trespassed on federal

property and pushed a police officer during the January 6, 2021, Capitol riot. Fischer, 603 U.S. at 485-86

(quoting 18 U.S.C. § 1512(c)(1)-(2)). The Court again

invoked the noscitur a sociis and ejusdem generis canons to determine that the statute’s use of the term

“otherwise obstruct” could not be read broadly enough

to encompass the challenged behavior without rendering the previous clause superfluous. Id. at 487-91.

This case presents a similar question: does

CERCLA’s use of the term “other such resources” extend to the sort of cultural resources Respondent

seeks compensation for, when considered in both its

immediate and broader context? The answer is clearly

“no,” for the same reasons this Court applied in Yates

and Fischer. First, the term “other such resources”

does not stand alone, and indeed modifies the previous

clause, defining “natural resources” to include “land,

fish, wildlife, biota, air, water, ground water, drinking

water supplies, and other such resources.” 42 U.S.C.

§§ 9607(a)(4)(C), (f)(1), 9601(16). Each of the items in

this list refers to a physical object or substance within

the natural world—either a living creature or a physical resource such as air or water necessary to sustain

7

such living creatures. The residual clause must therefore be construed to refer only to resources that also

fit within that class.

The noscitur a sociis canon applies with equal force

when one takes a broader look at CERCLA as a whole.

As with Sarbanes-Oxley in Yates and Fischer, Respondent and the Ninth Circuit have attempted to apply CERCLA well outside its originally intended context. CERCLA is an environmental statute concerned

with the remediation of natural resources physically

damaged by pollution, as well as the compensation of

property owners for the lost monetary value of those

resources. See Burlington Northern, 556 U.S. at 602.

There is no provision addressing cultural or historical

resources or emotional distress damages, even in the

section detailing tribal participation in the statutory

scheme and mandating the government consult with

tribal governments in producing surveys of potential

hazardous waste sites on Indian lands. See 42 U.S.C.

§ 9626. CERCLA is no more concerned with damages

to cultural resources than Sarbanes-Oxley is concerned with fishery management.

This becomes even more clear when examining

CERCLA within its statutory context. Congress is

presumed to know what it’s doing and how to clearly

communicate its intentions within the plain language

of its statutes. Whitman v. American Trucking Ass’ns,

531 U.S. 457, 468 (2001) (“Congress, we have held,

does not alter the fundamental details of a regulatory

scheme in vague terms or ancillary provisions—it does

not, one might say, hide elephants in mouseholes.”).

Courts should therefore avoid imputing unwritten

provisions into statutes when “Congress has shown

that it knows how to adopt the omitted language or

8

provision.” Lackey v. Stinnie, 604 U.S. 192, 205

(2025).

Here, Congress has repeatedly shown it knows how

to address the sorts of concerns Respondent raises in

other statutes more directly focused on those issues.

Congress enacted the National Historic Preservation

Act fourteen years prior to CERCLA for the express

purpose of preserving sites of historic or cultural importance, 54 U.S.C. §§ 300101-307108, building off the

Antiquities Act of 1906, id. at §§ 320301-320303. Congress enacted the Religious Freedom Restoration Act

in 1993, which provides an avenue for relief when federal action interferes with religious exercise, including for those following traditional Native American religions. 42 U.S.C. § 2000bb. Statutes such as the Native American Graves Protection and Repatriation Act

of 1990 and the Archaeological Resources Protection

Act of 1979 focus specifically on protecting Native

American cultural resources. See 25 U.S.C. §§ 30013013; 16 U.S.C. §§ 470aa-470mm. Many statutes,

such as Title VII of the Civil Rights Act, explicitly

make emotional distress or psychological damages

available for victims of violations.

42 U.S.C.

§ 1981a(b). The United States Congress regularly enacts statutes explicitly providing compensation for

non-economic injuries of the sort Respondent complains of—that it chose not to do so here, in a statute

focused on the efficient cleanup of environmental disasters, is a strong indication such relief was not intended.

As shown above, when Congress wishes to enact

laws protecting cultural resources or providing compensation for emotional or otherwise intangible injury, it knows how to do so, and indeed has on numerous occasions. Its silence regarding these issues in the

9

text of CERCLA, therefore, militates strongly against

reading cultural damages into what is otherwise a

very grounded statute concerned with monetary liability for major environmental disasters. CERCLA is

not an appropriate vehicle for redressing whatever

cultural injury Respondent may have purportedly received.

Respondent attempts to sidestep this fatal flaw by

arguing that they are not seeking “cultural resource

damages” per se, but merely natural resources damages as a result of “the interim lost use of the injured

resources for cultural purposes.” Confederated Tribes

of the Colville Reservation v. Teck Cominco Metals

Ltd., 153 F.4th 947, 951 (9th Cir. 2025). The claim not

to seek cultural resources damages, but ordinary damages is based on the use value of the property in question, “enhanced” by Respondent’s “unique relationship

with the Upper Columbia River.” Id. In doing so,

however, Respondent urges this Court to expand the

concept of use value to an essentially limitless degree.

To the extent courts allow compensation for use

value beyond the cost of restoring or replacing the

damaged resources, that value is typically determined

based on one or more of several methodologies aiming

to generate a monetary valuation for the loss and lost

use. See 43 C.F.R. § 11.83 (describing various acceptable valuation methodologies, including “market price,”

“appraisal,” “travel cost,” and “resource equivalency

analysis.” All are concerned with determining an objective economic value for lost natural resources, and

there is no provision for unique or idiosyncratic cultural value.); American Tel. & Tel. Co. v. Connecticut

Light & Power Co., 470 F. Supp. 105, 109 (D. Conn.

1979). It is the fair market value of the resources, rather than any one individual or collection of

10

individuals’ unique and subjective sense of value, for

which CERCLA seeks to provide compensation. See

Ohio v. Dep’t of the Interior, 880 F.2d 432, 462-65 (D.C.

Cir. 1989) (Even on the rare occasion a court sanctions

natural resource damages valued using non-market

mechanisms such as “contingency value” assessments

where no more effective methodology is reasonably

available, the analysis is still attempting to simulate

the effects of a market transaction).

Otherwise, every plaintiff could obtain unlimited

compensation merely by placing an irrationally high

value on their use of their property. The entire purpose of the statute would be compromised by bad actors seeking windfalls in compensation for damage to

property of only marginal value. A mechanism for

holding polluters accountable would morph into a

rent-seeking enterprise almost perfectly constructed

to hamstring industrial investment in domestic natural resources. For these reasons, courts do not generally consider an individual or group’s emotional connection to a specific piece of property when determining compensation in other contexts, such as the use of

eminent domain. See United States v. 50 Acres of

Land, 469 U.S. 24, 35 (1984) (“[J]ust compensation

must be measured by an objective standard that disregards subjective values which are only of significance to an individual owner.”). There is no reason to

believe Congress intended a different result in the

CERCLA context.

ii. The Ninth Circuit created a new class

of damages beyond the text

The importance of following the statutory text applies with force where a plaintiff is seeking a new form

of relief that will retroactively open large numbers of

11

American citizens up to the threat of limitless liability.

First, there is a strong presumption against finding an implied cause of action in a statute that already

provides for an explicit cause of action.

See

Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S.

11, 19-20 (1979) (“[I]t is an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must

be chary of reading others into it. ‘When a statute limits a thing to be done in a particular mode, it includes

the negative of any other mode.’”) (quoting Botany

Worsted Mills v. United States, 278 U.S. 282, 289

(1929)). The fact that CERCLA expressly provides a

private right of action for damages to certain natural

resources for the limited purpose of “restor[ing], replac[ing], or acquir[ing] the equivalent of such natural

resources,” 42 U.S.C. § 9607(f)(1), militates against inferring the existence of an additional implied cause of

action for cultural resource damages. This presumption is strengthened by the fact that neither CERCLA

nor its implementing regulations make any mention

of cultural, spiritual, or historic resources or imply

that a special “connection” or “relationship” with a

particular natural resource should hold any weight in

damages calculations. See Pakootas v. Teck Cominco

Metals, Ltd., No. 2:04-CV-00256-SAB, 2024 WL

457769, at *2 (E.D. Wash. Feb. 6, 2024). CERCLA’s

legislative history is replete with discussion of the

health and economic consequences of pollution, concerns about oil spills, and the method of calculating

damages, but does not include any discussion of cultural resources or providing additional compensation

based on individuals’ special relationships to any such

resources. Absent any indication, either in the plain

12

text of CERCLA itself or the circumstances of its enactment, that Congress intended to provide a remedy

for injury to a plaintiff’s special relationship or connection to a natural resource, the Ninth Circuit should

not have inferred such an implied remedy.

Second, the Ninth Circuit’s decision creates an entirely new class of relief that retroactively subjects

Americans across the country to potentially limitless

liability, essentially legislating from the bench in violation of the Constitution’s separation of powers. In

the more than 45 years of CERCLA’s existence, no

other court has ever accepted the damages theory that

won the day for Respondent below. 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”); In re Gold King Mine Release in San Juan

Cnty., 669 F. Supp. 3d 1146, 1156, 1158-59 (D.N.M.

2023) (refusing to allow a tribe to collect damages relating to loss of “confidence of its members in the San

Juan River as a natural resource,” because the purpose of the damages would be for something other

than the restoration, replacement, or acquisition of

the equivalent of natural resources allowed under

CERCLA, and would thus “undercut Congress’s policy

objectives in enacting [CERCLA]”) (quoting New Mexico v. General Elec. Co., 467 F.3d 1223, 1248 (10th Cir.

2006)).

Indeed, other courts that have addressed this issue

have held that the type of cultural resource damages

Respondent seeks are not only not contemplated by

the statute, but are indeed expressly preempted by it.

See In re Gold King Mine, 669 F. Supp. 3d at 1158-59.

The Ninth Circuit’s decision represents an abrupt departure from prior precedent that greatly expands the

13

scope and scale of CERCLA liability beyond what a

plain reading of the language (guided by broader statutory context) allows. The decision’s free-wheeling

willingness to read expansive new remedies into a

statute without clear congressional authorization

stands in stark contrast to the jurisprudence of this

Court, which has repeatedly cautioned courts against

such expansive and unsupported interpretations of

federal statutes. See, e.g., Hallstrom v. Tillamook

Cnty., 493 U.S. 20, 28 (1989) (“‘Absent a clearly expressed legislative intention to the contrary,’ the

words of the statute are conclusive.”) (quoting Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447

U.S. 102, 108 (1980)); West Virginia v. EPA, 597 U.S.

697, 721-24 (2022) (cautioning against “expansive construction” of statutes in the context of a statutory delegation of authority to a federal agency, and reiterating that “we ‘typically greet’ assertions of ‘extravagant

statutory power over the national economy’ with

‘skepticism’”) (quoting Utility Air Regulatory Group v.

EPA, 573 U.S. 302, 324 (2014)). The Ninth Circuit has

“‘claim[ed] to discover in a long-extant statute an unheralded power’ representing a ‘transformative expansion in [its] regulatory authority,’” West Virginia,

597 U.S. at 724 (quoting Utility Air, 573 U.S. at 324),

and its decision therefore cannot be allowed to stand.

b. The Ninth Circuit’s decision creates uncertainty, discouraging investments and

harming local communities that depend

on them

The Ninth Circuit’s decision, if allowed to stand, is

likely to have profound negative consequences for investment in natural resource projects in mining, oil

and gas, and manufacturing. “[T]ens of thousands” of

14

“potentially responsible parties” exist who could now

be subject to limitless liability for vaguely defined and

impossible-to-measure damages like those Respondent seeks here. Atl. Richfield Co. v. Christian, 590

U.S. 1, 3-4 (2020). Businesses across the country have

been built on longstanding understandings of their liability risk under this nation’s environmental laws,

and these reasonable reliance interests cannot be casually tossed aside. See Payne v. Tennessee, 501 U.S.

808, 828 (1991) (“Considerations in favor of stare decisis are at their acme in cases involving property and

contract rights, where reliance interests are involved[.]”); Planned Parenthood of Se. Pennsylvania v.

Casey, 505 U.S. 833, 855-56 (1992), overruled on other

grounds by Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) (listing reliance interests as one

of the four factors the Court must consider when deciding whether to overturn prior precedent, and upholding stare decisis, in part, due to two decades of

women making important life decisions in reliance on

the existing precedent). Opening up an entirely new

category of liability, especially one that relies on fundamentally subjective and difficult to quantify questions like the value of a tribe’s “unique cultural connection to fishing,” would retroactively expose tens of

thousands of Americans to the threat of limitless liability they could have never anticipated.

Moreover, the economic fallout of the Ninth Circuit’s decision is likely to fall hard precisely on the rural tribal communities the decision was intended to

protect. As amici supporting Respondent below

proudly acknowledge, tribal governments are leading

the charge in seeking expansion to the damages allowed under CERCLA. Amicus Br. of Nez Perce Tribe

et al. at 21, C.A. Dkt. 26. As news spreads about tribal

15

governments seeking—and receiving—large CERCLA

damage awards for unprecedented reasons, rational

fear of cultural resources liability is likely to chill future investment on and around tribal land. CERCLA

as it currently exists has already chilled investment

and caused businesses to abandon urban cores, see

Robert H. Abrams, Superfund and the Evolution of

Brownfields, 21 Wm. & Mary Envtl. L. & Pol’y Rev.

265, 271–74 (1997) (discussing CERCLA liability’s

creation of large swathes of “pariah parcels” throughout inner city neighborhoods that were practically undevelopable, despite usually only having marginal levels of pollution), and making areas in and around

tribal land even more of a business risk can only make

things worse as firms look to invest in areas that present less aggressive risk profiles. This will mean less

well paying and stable employment available for communities that are already struggling with high poverty and unemployment, less actual tribal involvement in making the decisions on how these projects

are conducted, and potentially even a degradation of

environmental priorities as more and more resources

are dedicated to salve emotional wounds rather than

actually contribute to environmental restoration. See

Pakootas v. Teck Cominco Metals, Ltd., 646 F.3d 1214,

1222 (9th Cir. 2011) (Businesses “do not have unlimited financial resources,” and “[s]ometimes the orange

is squeezed dry.”).

II.

The Ninth Circuit’s Decision Has Created A

Circuit Split This Court Must Resolve

The Ninth Circuit has departed not only from this

Court’s longstanding statutory interpretation principles, but also from its sister circuits who have also addressed the question of cultural resource damages

16

under CERCLA. Both the Tenth and D.C. Circuits

have reached contrary conclusions in similar cases.

See General Electric, 467 F.3d 1223; Ohio, 880 F.2d

432. This inter-circuit disagreement demands the

Court’s attention.

In General Electric, New Mexico sought state tort

damages under public nuisance and negligence theories from companies allegedly responsible for chemical

contamination of groundwater. 467 F.3d at 1226. The

Tenth Circuit held that these claims were preempted

by CERCLA, and that the statute “demands that environmental protection and preservation be the primary, if not the sole, objective of natural resource

damage valuation.” Id. at 1247 (quotation omitted).

The court found that Congress had been quite clear in

its intent that the purpose of CERCLA damages

“should be to protect the public interest in a healthy

functioning environment, and not to provide a windfall to [a government trustee’s] public treasury.” Id.

(quoting Puerto Rico v. SS Zoe Colocotroni, 628 F.2d

652, 676 (1st Cir. 1980)). Congress used its “considered judgment” to determine that “the best method of

serving the public interest” required limiting

CERCLA damage awards to be used only for the purpose of restoring or replacing lost natural resources.

Id.

The Tenth Circuit rejected the insertion of personal

compensatory damages that do not directly contribute

to environmental restoration or compensate for interim loss of the injured natural resources, and that

was in a context where the damages were susceptible

to well-established, objective tests. Here, by contrast,

Respondent seeks uncapped damages, unmoored from

any objective value calculation or any purpose other

than the filling of Respondent’s public coffers.

17

In Ohio, which admittedly hews slightly closer to

the Ninth Circuit’s decision below, a group of organizations challenged Interior Department regulations

that limited the natural resource CERCLA damages

recoverable by government trustees to “the lesser of:

restoration or replacement costs; or diminution of use

values,” as well as the specific “hierarchy of permissible methods for determining ‘use values’” as inconsistent with CERCLA’s text. 880 F.2d at 441, 462

(quoting 43 C.F.R. § 11.35(b)(2) (1987)). But while the

D.C. Circuit admonished the Department of the Interior for being overly restrictive in the precise way natural resource damages must be calculated, it anchors

its entire analysis on the assumption that even intangible natural resource damages that cannot be readily

calculated by a simple referral to competitive market

prices require some objective basis for their monetary

value. See generally, id. Respondent would not have

succeeded on their claim for cultural resource damages under even the D.C. Circuit’s relaxed standards

in Ohio.

The Ninth Circuit’s decision is inconsistent with the

text and history of CERCLA, this Court’s jurisprudence, and the precedent of at least two other circuit

courts of appeal. Its error is also one of substantial

national importance which, if allowed to stand, would

retroactively expose tens of thousands of Americans to

potentially unlimited liability that Congress never

authorized.

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CONCLUSION

For the foregoing reasons, the Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

J EFFREY W. MC C OY

DAVID MCDONALD

Pacific Legal Foundation

Counsel of Record

1745 Shea Center Drive

3100 Clarendon Blvd.

Suite 400

Suite 1000

Highlands Ranch, CO 80129 Arlington, VA 22201

202.888.6881

dmcdonald@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation

AUGUST 2026