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NR&E

2014-2022

Counterculture: The Uncertain Legal Bases for Stand-Alone Tribal/Cultural Damages Recoveries for Natural Resource Injuries Under CERCLA

Amanda Gerke Halter and Ashleigh Myers

Summary

  • Summarizes the Forest Services’ proposed rescission of the regulatory definition of “habitat.”
  • Discusses the Fish and Wildlife Services’ proposed rescission of its ESA section 4(b)(2) procedures.
  • Examines other anticipated ESA regulatory actions and the implications of anticipated ESA regulatory revisions.
Counterculture: The Uncertain Legal Bases for Stand-Alone Tribal/Cultural Damages Recoveries for Natural Resource Injuries Under CERCLA
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The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) authorizes federally recognized Indian tribes to serve as natural resource trustees with authority to assess and recover damages to natural resources caused by releases of hazardous substances. 42 U.S.C. § 9607(f)(1); 40 C.F.R. § 300.610. Under this authority, tribes often participate as trustees in the assessment and recovery of natural resource damages (NRD). CERCLA NRD claims are premised on the occurrence of injury to public natural resources, such as fish, wildlife, plants, water, sediments, and soils, and seek damages from responsible parties additional to those response costs necessary to investigate and remediate a release of hazardous substances. Tribal trustees often also seek additional compensation, not shared with co-trustees, for losses tied to tribal cultural values and uses of natural resources; in effect, these are tribal service loss claims pursued exclusively by the tribe, related to but independent of the NRD claim held collectively by the other trustees for the natural resources at issue. This article examines the legal support and precedent for recovery of damages based on allegations of lost tribal cultural uses or nonuses of shared natural resources.

The authors have counted 61 CERCLA NRD settlements for 20 sites that involved tribal trustees as of 2021; of these, 11 settlements at nine of these sites included stand-alone recoveries for tribal trustees. These recoveries varied widely: from $300,000 for the Oneida Tribe for the Fox River Superfund Site to $18.3M for the Confederated Salish and Kootenai Tribes for the Clark Fork River Superfund Site. The average is $4.28M, and the median is $1.83M. Many of these stand-alone tribal NRD claims pertained to natural resources for which the tribal trustees share trusteeship with other state or federal agencies or that are outside geographic tribal jurisdiction.

Yet, CERCLA and the U.S. Department of Interior’s (DOI) NRD assessment regulations do not expressly recognize the availability of tribal cultural damages or prescribe assessment methodologies for such losses, unlike other federal statutes providing for NRDs. And, because the overwhelming majority of CERCLA NRD claims are settled without trial or much litigation, there is little jurisprudence on the recoverability of such damages. This leaves much uncertainty regarding the extent to which, if at all, tribal trustees may recover tribal cultural damages separately, above and beyond NRDs recovered by or with state and federal co-trustees, particularly for injuries to natural resources outside tribal jurisdiction or subject to shared trusteeship.

Lack of Statutory Clarity

The uncertainty starts with the statute itself. Under CERCLA, responsible parties are liable for “damages for injury to, destruction of, or loss of natural resources.” 42 U.S.C. § 9607(a)(4)(C). “Natural resources” are defined as “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 . . . any State or local government, any foreign government, [and] any Indian tribe . . .”, i.e., public versus privately held resources. 42 U.S.C. § 9601(16). While the statute plainly recognizes that Indian tribes are natural resource trustees, it does not define the scope of that trusteeship, nor does it reference tribal or cultural resources or tribal or cultural services provided by natural resources.

In contrast, two other federal statutes providing for NRDs affirmatively recognize cultural resource injuries as compensable. The National Marine Sanctuaries Act (NMSA) allows compensation for injuries to “any living or nonliving resource of a national marine sanctuary that contributes to the conservation, recreational, ecological, historical, educational, cultural, archeological, scientific, or aesthetic value of the sanctuary[.]” 16 U.S.C. § 1432(8) (emphasis added). Similarly, the System Unit Resource Protection Act (SURPA) (formerly the Park System Resources Protection Act) allows compensation for injuries to “any living or non-living resource that is located within the boundaries of a [National Park] System unit . . .” [54 U.S.C. § 100721(3) (emphasis added)], which the National Park Service interprets to include cultural resources, such as artifacts. Damage Assessment and Restoration Handbook: Guidance for Damage Assessment and Restoration Activities in the National Park Service, Nat’l Park Serv., U.S. Dep’t of the Interior (2003).

Lack of Regulatory Clarity

The DOI’s CERCLA NRD assessment (NRDA) regulations, 40 C.F.R. pt. 11—which define natural resource injuries and prescribe how injuries and damages are quantified—have little to say about tribal service losses, and nothing to say about how to assess those losses. Outside these regulations, DOI has endeavored to clarify that it sees injuries to cultural resources as not recoverable, but that cultural uses and values of injured natural resources may be factored into the damages assessment. For example, in its Proposed Rules relating to NRDAs, DOI discussed cultural damages:

The Department acknowledges the confusion that has arisen as a result of multiple uses and meanings of the term “resource” under different statutes. “Archaeological” and other “cultural” resources are not “land, fish, wildlife, biota, air, water, ground water, drinking water supplies, (or) other such resources.” Therefore, “archaeological” and “cultural” resources do not constitute “natural” resources under CERCLA.

Nevertheless, although archaeological and cultural resources, as defined in other statutes, are not treated as “natural” resources under CERCLA, the rule does allow trustee agencies to factor the loss of archaeological and other cultural attributes provided by a natural resource into a natural resource damage assessment through consideration of the services provided by that resource. For example, if land constituting a CERCLA-defined natural resource contained archaeological artifacts, then that land might provide a variety of different services including, for example, the service of supporting archaeological research. If an injury to the land caused a reduction in the level of archaeological research that could be performed, trustee officials could recover damages for the lost public use of that service.

Natural Resource Damage Assessments, 58 Fed. Reg. 39,328-01, 39,336 (July 22, 1993) (emphasis added). DOI reiterated the point in its Final Rule, stating more concisely that

As was explained in the July 22, 1993, Federal Register notice, the Department acknowledges the confusion that has arisen as a result of multiple uses and meanings of the term “resource” under different statutes. “Archaeological” and other “cultural” resources are not “land, fish, wildlife, biota, air, water, ground water, drinking water supplies, (or) other such resources.” Therefore, “archaeological” and “cultural” resources do not constitute “natural” resources under CERCLA.

Nevertheless, although archaeological and cultural resources, as defined in other statutes, are not treated as “natural” resources under CERCLA, the rule does allow trustee officials to include the loss of archaeological and other cultural services provided by a natural resource in a natural resource damage assessment. For example, if land constituting a CERCLA-defined natural resource contains archaeological artifacts, then that land might provide the service of supporting archaeological research. If an injury to the land causes a reduction in the level of service (archaeological research) that could be performed, trustee officials could recover damages for the lost service. Further clarification is beyond the scope of this rulemaking.

Natural Resource Damage Assessments, 59 Fed. Reg. 14,262-01, 14,269 (Mar. 25, 1994) (emphasis added).

In subsequent commentary, DOI responded to questions about the treatment of tribal values in the regulations, stating once again its view that, while cultural resources are not “natural resources,” affected cultural uses of “natural resources” may be compensable:

[T]he Department believes that “cultural” resources, including tribal cultural resources, do not constitute “natural resources” as defined by CERCLA. However, the Department’s regulations do permit trustee officials to include the loss of cultural services provided by a natural resource in a natural resource damage assessment.

Natural Resource Damage Assessments, 59 Fed. Reg. 52,749-01, 52,757 (Oct. 19, 1994).

DOI said the same thing again in 2008 when it amended the Part B NRDA regulations, in part, to respond to court decisions in State of Ohio v. U.S. Department of the Interior, 880 F.2d 432 (D.C. Cir. 1989) (judicial review of DOI’s 1986 adoption of NRDA regulations), and Kennecott Utah Copper Corp. v. U.S. Department of the Interior, 88 F.3d 1191 (D.C. Cir. 1996) (judicial review of DOI’s 1994 adoption of NRDA regulations):

Cultural, religious, and ceremonial losses that rise from the destruction of or injury to natural resources continue to be cognizable under the revisions. The revisions do not affect the treatment of these losses under the rule.

Natural Resource Damages for Hazardous Substances, 73 Fed. Reg. 57,259, 57,264 (Oct. 2, 2008).

It is notable that these clarifications are not made within the regulations themselves, only within the preamble and other commentary. See La. Env’t Action v. U.S. Env’t Prot. Agency, 382 F.3d 575 (2004) (the preamble’s role is to provide the legal and factual basis for the rule and guidance in the interpretation of the agency’s rules, but it is not itself an enforceable rule entitled to agency deference). In a lawsuit regarding the 1994 DOI NRDA rulemaking, industry petitioners challenged DOI’s preamble characterization of natural resources as inclusive of cultural services derived from natural resources on that very basis. Kennecott, 88 F.3d at 1222–23. The court, however, determined the issue was not yet ripe for review and deferred decision to a live controversy. Twenty-five years later, we continue to await a live controversy to elucidate this open question.

Nevertheless, the Kennecott decision is instructive on the import of DOI’s attempted clarification of the scope of natural resources. The court indicated that DOI’s commentary “does not represent an interpretation of an identified statutory provision, nor a clarification of an otherwise binding regulation.” Id. at 1223. Thus, relying on this interpretation is potentially problematic because a district court has recognized it as neither an interpretation of a statutory provision nor a codified regulation.

Adding to the uncertainty is the fact that the DOI NRDA regulations do not have tribal service loss–specific assessment methodologies. And, while attempts have been made in individual cases to adapt valuation methods that are referenced in the regulations to assess tribal service losses, including such flexible methodologies as contingent valuation (a survey tool), none of the methods speak to tribal service losses specifically, and no such applications have seen, much less been shown to survive, judicial review. 43 C.F.R. § 11.83.

Limited Judicial Treatment of Tribal Service Losses

Compounding the uncertainty around the legal viability of stand-alone tribal service loss damages arising from injured natural resources, particularly off tribal lands or under shared trusteeship with federal or state trustees, is the fact that, in that in the few cases that have referenced tribal services losses, none have reached the merits, and the dicta is unfavorable. Despite determining that “the question [of] whether a trustee may recover under CERCLA for injury to archaeological and cultural resources is not ripe,” the Kennecott court hinted that the DOI suggestion that cultural damages are recoverable may go beyond the scope of CERCLA and its definition of natural resources. 88 F.3d at 1223. Seven years later, the U.S. District Court for the District of Idaho, in addressing a live NRD controversy, stated: “Cultural uses of water and soil by [the] Tribe are not recoverable as natural resource damages.” Coeur D’Alene Tribe v. Asarco Inc., 280 F. Supp. 2d 1094, 1107 (D. Idaho 2003), modified in part sub nom. United States v. Asarco Inc., 471 F. Supp. 2d 1063 (D. Idaho 2005). The court explained that, “[w]hile the Tribe may use certain natural resources in the exercise of their cultural activities, such use does not rise to the level of making a natural resource” subject to trusteeship and potential damage recovery. Id. at 1117.

Additional Statutory Ambiguity in Compensable Services and Use of NRD Funds

Ambiguity around what services provided by injured natural resources give rise to compensable damages, and how tribes may use recovered NRD funds, further contributes to uncertainty around the recoverability of tribal service loss damages. Tribes often value service losses from injured natural resources as including “nonuse” values, such as the value of knowing that a resource exists and will be passed on for future generations (as distinguished from the lost value of specific uses provided by the resource), but it is far from clear that nonuse values are recoverable under CERCLA. CERCLA defines the measure of compensation for natural resource injuries as including compensation for any interim lost use of those resources. 42 U.S.C. § 9607(f)(1). Nonuse values are not mentioned. See id. § 9601(16). The statute directed only that regulations be adopted taking into consideration use value: “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.” Id. § 9651(c) (emphasis added). But the DOI regulations define compensable value as including “the economic value of the lost services provided by the injured resources, including both public use and nonuse values such as existence and bequest values.” 43 C.F.R. § 11.83(c) (emphasis added). Some argue that DOI went beyond the scope of CERCLA in defining compensable value to include damages for nonuse values.

DOI’s inclusion of nonuse value recovery does appear dissonant with congressional intent, as Congress expressly rejected recovery for nonuse values in 1995 in considering an amendment to CERCLA. The proposed amendment would have allowed for the “recovery of NRD for so-called non-use values,” for the “intangible . . . aesthetic, cultural and religious values attached to natural resources that have been destroyed or damaged by toxic contamination.” Sarah Peterman, CERCLA’s Unrecoverable National Resource Damages: Injuries to Cultural Resources and Services, 38 Ecology L.Q. (2011) (citing Superfund Legislation: Hearing of the Commerce, Trade and Hazardous Materials Subcomm. of the H. Commerce Comm., 104th Cong. (1995)). Opponents to the amendment suggested it would permit “punitive” recovery by going beyond cleanup costs and restoration of natural resources. Id. Congress did not approve the amendment, suggesting an intent to disallow recovery of tribal nonuse values as NRD.

Further adding to the uncertainty surrounding tribal service losses is the CERCLA provision prescribing how NRD funds may be used. Oddly, this provision addresses the federal and state government trustees’ use of recovered NRD funds but is silent as to tribal trustees. CERCLA’s 1986 amendments broadly treat tribes as states, and specifically recognized tribes as natural resource trustees for resources “belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by” them. 42 U.S.C. § 9601(16); see Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499, 100 Stat. 1613. This also included adding reference to Indian tribes as trustees under CERCLA section 107(f)(1). The 1986 amendments also amended section 107(f)(1) to indicate that the natural resource trustees, rather than the EPA administrator, retain recovered NRD funds, and added language prescribing that NRD recoveries be used only to restore, replace, or acquire equivalent natural resources. Id.; H.R. Conf. Rep. No. 99-962 (Oct. 3, 1986). CERCLA provides:

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.

Interestingly, though, the statute provides that only, “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.” That is, it is unclear whether in fact tribes may act as an independent trustee or recover independently of co-trustees. The statute goes on to say,

[S]ums 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. . . .

42 U.S.C. § 9607(f)(1).

One interpretation of the absence of tribal trustees in this provision is that Congress did not intend tribes to be limited in the same manner as states and the federal government in how they spend NRD recoveries. Another interpretation is that Congress did not include Indian tribes in prescribing how recovered funds are to be used because it did not contemplate stand-alone tribal damages recoveries. It is worth observing that an unlimited-use interpretation is dissonant with the legislative history of CERCLA, which evidences Congress’s clear intent that NRDs be used exclusively for restoring, replacing, and acquiring equivalent resources, and not for other compensatory purposes, without regard to who the trustee is:

The sole purpose of natural resource damages is to provide for the rapid restoration and replacement of significant natural resources that have been damaged by contact with hazardous materials. Financial compensation from persons who caused these damages should be used solely for the purpose of restoring or replacing these resources, and should not serve as a means of seeking retribution or punitive damages from potentially responsible parties.

141 Cong. Rec. S9827, S9875 (Daily Ed. July 13, 1995). Indeed, a House version of the 1986 amendments treated tribal trustees’ use of NRD funds exactly as for the federal and state trustees: “The sums recovered are to be available for use to restore, rehabilitate or acquire the equivalent of the natural resources by the appropriate agencies of the Indian Tribe.” H.R. Rep. 99-253(V) (Nov. 12, 1985). The Senate version (quoted above) was ultimately adopted, though the conference report does not indicate an intent to strike reference to how the tribes are to use recovered NRD funds. H.R. Conf. Rep. 99-962.

Absent specific language regarding tribal trustees’ use of funds, stand-alone tribal damages claims are arguably legally tenuous, and perhaps even more so where the natural resources at issue are subject to co-trusteeship with state or federal trustees whose use of funds is clearly limited. Though a tribe’s relationship to given natural resources may be unique or specific to the tribe, that relationship may not be sufficient to support a stand-alone claim for damages. Not incidentally, separate tribal recoveries for shared trust resources potentially implicate CERCLA’s preclusion of a double recovery of NRD. 42 U.S.C. § 9607(f)(1) (“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.”).

Thus, whether Congress intended tribal trustees to receive stand-alone NRD compensation for tribal service losses is an open question.

Implications for NRD Settlements

Despite these legal uncertainties, most NRD settlements involving tribal trustees do include stand-alone tribal recoveries, perhaps because not including them would preclude settlement. There is generally some judicial review, though: NRD settlements involving federal trustees are memorialized as consent decrees lodged with a court, which must “satisfy itself that the settlement is reasonable, fair, and consistent with the purposes that CERCLA is intended to serve.” United States v. Cannons Eng’g Corp., 899 F.2d 79, 85 (1st Cir. 1990) (citing H.R. Rep. No. 253, pt. 3, 99th Cong., 1st Sess. 19 (1985), reprinted in 1986 U.S.C.C.A.N. 3038, 3042). To date, no court has withheld approval of a consent decree on the basis that it included, or failed to include, stand-alone tribal damages, and no challenges appear to have been made on that basis.

As a practical matter, absent judicial clarification of these issues, or renewed efforts to update the DOI NRDA regulations, stand-alone tribal damages will likely continue in NRD settlements. And absent legal challenges that present the issue for adjudication, such settlements will likely continue to obtain judicial approval because “CERCLA’s policy of encouraging early settlements is strengthened when a government agency charged with protecting the public interest has pulled the laboring oar in constructing the proposed settlement.” United States v. Montrose Chem. Corp., 50 F.3d 741, 746 (9th Cir. 1995). Meanwhile, the ambiguity regarding the legal bases for stand-alone tribal damage recoveries persists, alongside a growing need for congressional or judicial clarification for the benefit of all interested parties.

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