csm - tribes as trustees - ele center conference on natural resource damages - june 6, 2016

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Natural Resource Damage Claims• Under CERCLA the governing body of a

Tribal government may appoint a Tribal trustee to:– Assess Damages– Conduct natural resource damage

assessments– Implement restoration plans to restore, replace

or acquire the equivalent of injured resources

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Natural Resource Damage Claims

• Tribal trustees may assert NRD claims for natural resources belonging to, managed by, controlled by, or appertaining to the Tribe, or belonging to a member of the Tribe if the resources are subject to a trust restriction on alienation. 42 U.S.C. §9607(f)(1)– Permits the Tribe to assert NRD claims for

injuries to resources on allotment parcels

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“Tribe”• [A]ny Indian tribe, band, nation, or other

organized group or community, including any Alaska Native village but not including any Alaska Native regional or village corporation, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians. 42 U.S.C. § 9601(36)

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“Tribe”• Must be federally recognized. Non-

federally recognized tribes have no right to assert NRD claims under CERCLA or OPA.– State recognized tribes in Louisiana, such as

United Houma and Pointe-au-Chien were severely impacted by Gulf oil spill, had no basis for NRD claims under OPA

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Trusteeship• CERCLA’s statutory framework envisions

the possibility of co-trusteeship:Liability shall be to the United States . . . and to any 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 . . . . 42 U.S.C. § 9607(f)(1) (emphasis added).

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Trusteeship• Courts interpreting CERCLA reach the

same conclusion. – Coeur D’Alene I, 280 F. Supp.2d at 1115

(“trusteeship is not an all or nothing concept” and “co-trustees are the norm and not the exception.”)

– Coeur d’Alene II, 471 F. Supp. 2d at 1068 (“more than one trustee could manage, control, or hold in trust a given natural resource”)

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Trusteeship– U.S. v. Shell Oil Co., 605 F. Supp. 1064, 1080

(D. Colo. 1985) (recognizing that the United States and Colorado were co-trustees of the natural resources at issue).

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Bunker Hill Case • In Coeur d’Alene Tribe v. ASARCO, Inc.,

280 F. Supp. 1094 (D. Idaho 2003) (Coeur D’Alene I), court held that where two or more Trustees claimed an interest in a resource, their right to recovery would have to be proven by each at trial, and apportioned among them by the Court.

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Bunker Hill Case– Held that the “only feasible way to compensate

the co-Trustees and avoid a double recovery or unjust enrichment to one Trustee at the expense of another is to award damages in the ratio or percentage of actual management and control that is exercised by each of the various co-Trustees.”

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Bunker Hill Case– Because state of Idaho had settled out, court

held that federal and tribal Trustees could not recover for injury to resources owned or controlled by the state of Idaho, thereby limiting - potentially significantly - amount of their damages.

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Bunker Hill Case• Defined the scope of Trusteeship:

– Must exercise hands-on, day-to-day authority over a given resource

– ‘Mere statutory authority’ insufficient to establish trustee relationship’ ‘Power that is not exercised is not management or control. . . ‘

– No Trustee may recover a greater percentage than what Court determines is actual control and management

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Bunker Hill Case– Court made a factual finding that ‘Cultural uses

of water and soil by Tribe are not recoverable as natural resource damages’ FoF No. 16, 220 F. Supp.2d 1094, 1107

– Held that use of natural resources by Tribe in exercise of cultural activities does not by itself rise to the level of Trusteeship over that resource

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Bunker Hill Case• Two years later, in Coeur D'Alene Tribe v.

Asarco Inc., 471 F. Supp. 2d 1063 (D. Idaho 2005) (Coeur D'Alene II), court reversed itself sua sponte.– Court held that “its reliance on traditional tort

concepts in allocating trusteeship was misplaced.”

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Bunker Hill Case– Found that the “language of the statute

dictates that a co-trustee acting individually or collectively with the other co-trustees may go after the responsible party or parties for the full amount of the damage, less any amount that has already been paid as a result of a settlement to another trustee by a responsible party. . .”

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Bunker Hill Case– “. . . If there is later disagreement between

the co-trustees, that disagreement would have to be resolved by successive litigation between the trustees, but it could in no way affect the liability of the responsible part of parties.”

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Bunker Hill Case• Any trustee with standing may recover

NRD for purposes of restoring the natural resource

• NRD recovery is reduced by previous NRD recovery regarding the same natural resource.

• Any subsequent recovery by another co-trustee would be reduced by the amount of any previous recoveries.

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Tyson Foods Case• State of Oklahoma v. Tyson Foods, Inc.,

619 F.3d 1223 (10th Cir. 2010).• Oklahoma sued Tyson over annual

disposal of hundreds of thousands of tons of poultry waste in the Illinois River Watershed

• State sought monetary relief for past and future NRD, injunction against pollution.

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Tyson Foods Case• Both State and the Cherokee Nation claim

interests in natural resources in watershed.• Cherokee Nation was not a party• Tyson moved to dismiss the NRD on the

ground that Cherokee was a necessary party under FRCP 19 that had not been joined.

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Tyson Foods Case• State negotiated an agreement in which

Cherokee assigned the State its interests in the litigation in order to argue that the ability of the Tribe to protect its interests would not be impaired.

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Tyson Foods Case• Court ruled agreement invalid, held

Tribe’s interests would be impaired and PRPs would risk exposure to double, multiple or inconsistent obligations

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Tyson Foods Case– State sought damages for pollution to the

watershed as a whole, made no effort to differentiate, segregate, and/or exclude damages to tribal lands and water rights, ignoring Tribe’s right to manage its resources, recover for NRD

– State made no effort to prevent double recovery or unjust enrichment to one trustee – itself - by establishing the relative ratios or percentages attributable to itself and the Tribe

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Tyson Foods Case– State lacks standing to assert NRD claim for

injury to resources it does not own or hold in trust, therefore it cannot assert Tribe’s NRD claim

• FRCP 19 required dismissal of state’s NRD claims because Cherokee Nation was a required party.

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Tyson Foods Case• Tyson Foods approach requires the claims

of all potential trustees of a given natural resource be adjudicated in the same NRD case, in contrast with Coeur D’Alene II.

• Seems to preclude a successful NRD claim unless all trustees participate.

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Quapaw Case• The Tribe and individual Tribal members

alleged claims of public nuisance, private nuisance, trespass, unjust enrichment, strict liability, and deceit against successor entities of mining companies that operated in Tri-State Mining District

• Tribe also asserted NRD claims for injury to terrestrial and aquatic resources.

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Quapaw Case• Defendants moved to dismiss, arguing that

failure to join State of Oklahoma required dismissal under Tyson Foods case because of State’s overlapping interest in aquatic or land-based wildlife or waterways running through Tribal land.

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Quapaw Case• Tribe amended its preliminary assessment

of NRD to eliminate aquatic habitat equivalency analysis (HEA), focused solely on terrestrial HEA.

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Quapaw Case• Court found that Tribe’s decision to limit

relief sought for NRD to harm to plant life on Tribal lands resolved the Tyson Foods problem, State not a required party because it did not claim an interest in plant life or habitat on Tribal lands.

Quapaw Tribe v. Blue Tee Corp., 2010 U.S. Dist. LEXIS 86064 (N.D. Okla. Aug. 20, 2010).

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Basis and Scope of Trusteeship• How do you distinguish between resources

which are uniquely managed, held in trust by, appertaining to or otherwise controlled by a Tribe and those of the federal government or a state?

• Tribes need not own the resource to assert their interests as trustees, but they must exert some control over it.

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Basis and Scope of Trusteeship• Aboriginal Rights• Treaties, including --

– Off-reservation Hunting, Fishing, Gathering Rights

– Reserved Water Rights• Executive Orders

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Basis and Scope of Trusteeship• Aboriginal Title

– Refers to the right of the original inhabitants to use and occupy their aboriginal territory.

Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279, 99 L.Ed. 314, 75 S. Ct. 313 (1955).

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Basis and Scope of Trusteeship– Exists at the pleasure of the US, may be

extinguished “by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy, or otherwise. . .”

United States v. Sana Fe Pacific R.R. Co., 314 U.S. 339, 347, 86 L.Ed. 260, 62 S. Ct. 248 (1941).

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Basis and Scope of Trusteeship– Extinguishment terminates corresponding use

and occupancy rights, except where such rights are expressly or impliedly reserved in a treaty, statute, or executive order.

Western Shoshone Nat’l Council v. Molini, 951 F.2d 200, 202-03 (9th Cir. 1991), cert denied, 506 U.S. 822, 121 L.Ed.2d 39, 113 S. Ct. 74 (1992).

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Basis and Scope of Trusteeship• If several trustees assert their interest in a

resource, whether a party is a trustee under CERCLA is a factual determination to be made on a case by case basis, “depending on who the resource belongs to, who is it managed by, who controls the same and how the resource appertains to other resources.”

Coeur D'Alene I, 280 F. Supp. 2d at 1115.

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Basis and Scope of Trusteeship• Any basis on which to distinguish the types

of resources owned by Tribes with treaties, as opposed to Tribes without a treaty (e.g., tribes on reservations established by Executive Order)?

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Basis and Scope of Trusteeship• Treaties may contain an express

reservation of rights to off-reservation resources.– Stevens Treaties contain language reserving

to tribes the right to fish at all usual and accustomed fishing grounds and stations.

– Fish passing by U&A fishing grounds are thus resources “belonging to, managed by, controlled by, or appertaining to the Tribe”

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Basis and Scope of Trusteeship• Treaties may contain an implied

reservation of resources that are not explicitly reserved under a treaty– Reservation of water sufficient to satisfy the

purposes for which the reservation was established. Winters v. United States, 207 U.S. 564 (1908); Colville Confederated Tribes v. Walton, 64 F.2d 42 (9th Cir. 1981).

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Basis and Scope of Trusteeship• The specific purposes of executive order

reservations were often unarticulated. Colville Confederated Tribes v. Walton, 647 F.2d 42, 47 (9th Cir. 1981).

• Some rights may be implied from the executive orders creating reservations. Moore v. United States, 157 F.2d 760, 764 (9th Cir. 1946).

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Basis and Scope of Trusteeship• Off-reservation fishing rights must be

expressly reserved. Mescalero Apache Tribe v. Jones, 411 U.S. 145, 36 L.Ed.2d 114, 93 S. Ct. 1267 (1973).

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Basis and Scope of Trusteeship• In Confederated Tribes of Chehalis Indian

Reservation v. Washington, 96 F.3d 334 (9th Cir. 1996), court concluded no off-reservation fishing rights implied from executive order creating reservation.

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Basis and Scope of Trusteeship• In U.S. v. Oregon, 29 F.3d 481 (9th Cir.

1994), court held that Colville Tribe cannot assert rights under the Washington or Oregon treaties.– Colville Reservation was set aside by Executive

Order on July 2, 1872 for “Indians as the Department of the Interior may see fit to locate thereon.”

– E.O. did not reserve off-reservation fishing rights

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Basis and Scope of Trusteeship– The Tribe, the Confederated Tribes of the

Colville Reservation, comprises 12 tribes and bands that were settled on the Colville Reservation.

– Certain of its constituent tribes were descended from treaty signers.

– Nonetheless, no right to fish in “usual and accustomed fishing areas” as treaty tribes do

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Basis and Scope of Trusteeship– Colville Reservation was subsequently

diminished by a congressional act in 1891 that took back the north half, restored it to public domain. 27 Stat., 62 (July 1, 1892).

– Article 6 of Agreement of May 9, 1891 reserved to tribal members right to hunt and fish on allotments in the north half. Antoine v. Washington, 420 U.S. 194, 43 L.Ed.2d 129, 95 S. Ct. 944 (1975)

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Basis and Scope of Trusteeship– Allotments held in restricted title constitute

“resources . . . subject to a trust restriction on alienation” for which Colville Tribe could assert an NRD claim. See 42 U.S.C. §9607(f)(1)• See, also, Quapaw Tribe of Okla. v. Blue Tee Corp.,

653 F. Supp. 2d 1166, 1181-1185 (N.D. Okla. 2009) (Tribe could assert NRD claims for (1) all land “within the [former] Quapaw Reservation on restricted lands of the members of the Tribe;” (2) “on lands held in trust for the Tribe;” and (3) “on lands owned in fee simple by the Tribe.”)

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Trustee Council • Most sites with NRD issues and more than

one trustee will have a Trustee Council– Coordinate damage assessment activities– Plan for restoration through the NRDAR

process• Can be an effective tool for pushing

through to settlement of NRD claims• Can be a nightmare

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Trustee Council • Benefits to tribes of participating in Trustee

Council:– Knowledge and expertise of state and federal

resource agencies with experience at multiple sites

– Seat at the table– Funding

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Trustee Council • Burdens of participating in Trustee Council:

– Getting it going – negotiating Memorandum of Agreement governing the Council – can itself take years

– Ongoing participation requires an enormous investment of time and money

– Loss of ability to individually control how recovery is spent

– Generally must agree to be bound by federal and state limitations on use of NR damages

csm - tribes as trustees - ele center conference on natural resource damages - june 6, 2016

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