Administrative Law, Tribal Law and the Environment

American Bar AssociationSection of Administrative Law

and Regulatory Practice

Mid-Year Meeting Seattle, Washington

February 7, 2003

The Role of Tribal Governments as Natural Resource Trustees

under Superfund

Presented by:

Richard A. Du BeyShort Cressman & Burgess PLLC

999 Third Avenue, 30th FloorSeattle, WA 98104

(206) 682-3333

Tribal Environmental Protection Indian Reservations are the remaining homeland of Indian Tribes.

Tribes are entitled to the use and enjoyment of their reservation homeland and its associated on and off-Reservation natural resource base.

Tribal natural resource rights and entitlements frequently have significant cultural, as well as, economic value to the Tribe and its members.

The protection of Tribal natural resources necessarily includes protecting the environmental quality and habitat of such resources.

Federal Superfund

• Costs• political pressure• technical considerations• the relationships among the parties

The Superfund is process driven and the administrative process has a life of its own.

The extent to which a Tribe can influence the Superfund process is impacted by:

Superfund

• In the 1986 Superfund Amendments and Reauthorization Act (SARA), Congress expanded the role of Indian Tribes in both clean-up and natural resource damage actions.

Superfund

• Generally, the governing body of an Indian Tribe is to be “afforded substantially the same treatment as a State” with respect to many provisions of Superfund (42 USC § 9626(a))

Scope of Liability

PRPs responsible for the release of hazardous substances into the environment face liability under:

• Federal;• Tribal; and• State law

for clean-up costs and for injury to natural resources caused by the release.

Superfund• Section 107(f)(1) amended to

extend the Indian Tribes’ ability to recover for damages to Tribal natural resources Indian Tribes may assert claims for both on- and off-reservation natural resource damages.

Natural Resource Damages (NRD)

Superfund defines natural resources as:

* * *

land, air, water, groundwater drinking supplies, fish, wildlife habitats and other resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States, or any state, local, tribal or foreign government.

* * *

NRD Liability

• The costs of assessing the injury +

• The costs of restoring, replacing or

acquiring the equivalent natural resource(s)

+

• Lost market and non-market use values) +

• Interest

Natural Resource Trustees• Under Superfund 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

Key Questions in developing strategy:

• Who are the players?

• What is the current status of the proceeding?

• Where is the process going?

• What is the “big picture?”

• What are the relative strengths ofthe parties’ positions?

I nj ur y Q uant ifi cat ion

I nj ur y D et er minat ion

Pat hways A nalys is

D amage A ssessment Planning

Pr eassessment S cr een

Steps In The NRD Assessment Process

•Should we proceed with the damage assessment?

•What do we need to know?

•How should we obtain the information?•What is the extent of the injuries?•How did the injuries occur?

•How extensive are the injuries?

R est or at ion

R es t or at ion Planning

S et t lement s / L it igat ion

D amages D et er minat ion

Principle Steps In The Natural Resource Damage Assessment

Process

•What are the injuries worth?

•Collection of damages

•What do we need to do to repair the injuries?

•Implement / monitor planned activities

Tribal Role as NRD Trustee

• whether to facilitate coordination among EPA, the PRPs and the Trustees?

• whether the NRD claim will push PRPs (and EPA) to clean up contaminated on-Reservations lands and resources?

• whether doing so is serving the Tribe’s best interests?

Tribal NRD for Injury to Spiritual and Cultural

Resources• Native American spirituality

cannot be separated from day-to-day activities.

• Focus is upon nature’s continuous renewal or the circle of life, not linear time or upon an individual or an isolated event.

Tribal Spiritual and Cultural Resources

• Tribal beliefs recognize that humans are a part of and cannot survive in the absence of the natural environment.

The eloquent words of Nez Perce Chief Hinmaton Yalatkit (Joseph) continue to resound with truth and spiritual clarity:

The Earth and myself are of

one mind. The measure of the land and the measure of our bodies

are the same.

Tribal Spiritual and Cultural NRD Claims

• For Tribal NRD claims, broad statutory language permits, and arguably requires, that harm to spiritual and cultural resources be assessed and included in claim.

Examples of Tribal Spiritual and Cultural Resources as a

Component of Tribal NRD Claims

• Cultural resources harmed due to the release of hazardous substances:– loss of traditional fishing, hunting and

gathering activities – loss of ability to make traditional baskets– loss of treaty-protected fish and wildlife

resources– loss of traditional foods or medicines – loss of language and ceremonies (associated

with the activity or resource)

Acquisition of Equivalent

• Measure of NRD: – cost to restore,– rehabilitate, and/or – acquire equivalent

• If resources cannot be restored: acquisition of comparable lands for public parks or restoration of a similar natural area.

Where spiritual or cultural significance of resource has

been destroyed

Acquisition of equivalent might mean:– creation of program to preserve and

teach oral history of lost site, activity, associated traditions, language

– construction of school/interpretive center to teach about lost practices and associated language

Conclusion• The value of cultural resources are

recognized by statute and regulation• Tribal NRD claims under CERCLA

(and OPA), necessarily include:– damages caused by the release of

hazardous substances into the environment that injure natural resources and harm the spirit and culture of indigenous community