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CSM - Tribes as Trustees - ELE Center Conference on Natural Resource Damages - June 6, 2016

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Connie Sue Martin

This document discusses the basis and scope of tribal trusteeship under CERCLA for natural resource damage claims. It explains that tribes may be trustees for natural resources belonging to, managed by, controlled by, or appertaining to the tribe based on aboriginal rights, treaties guaranteeing hunting/fishing/gathering or water rights, executive orders, or aboriginal title. It notes that trusteeship depends on the specific facts of each case regarding ownership, management, and control of the injured resources.

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www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Environmental Law Education Center Conference on Natural Resource Damages Connie Sue Martin Schwabe Williamson & Wyatt csmartin@scwabe.com Tribes as Trustees
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. “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)
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. “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
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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).
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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”)
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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).
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.”
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.”
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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. . .”
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.”
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Quapaw Case • Tribe amended its preliminary assessment of NRD to eliminate aquatic habitat equivalency analysis (HEA), focused solely on terrestrial HEA.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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).
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Basis and Scope of Trusteeship • Aboriginal Rights • Treaties, including -- – Off-reservation Hunting, Fishing, Gathering Rights – Reserved Water Rights • Executive Orders
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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).
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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).
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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).
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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)?
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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”
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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).
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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).
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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).
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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)
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.”)
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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

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CSM - Tribes as Trustees - ELE Center Conference on Natural Resource Damages - June 6, 2016

  • 1. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Environmental Law Education Center Conference on Natural Resource Damages Connie Sue Martin Schwabe Williamson & Wyatt csmartin@scwabe.com Tribes as Trustees
  • 2. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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
  • 3. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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
  • 4. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. “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)
  • 5. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. “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
  • 6. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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).
  • 7. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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”)
  • 8. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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).
  • 9. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.
  • 10. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.”
  • 11. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.
  • 12. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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
  • 13. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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
  • 14. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.”
  • 15. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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. . .”
  • 16. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.”
  • 17. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.
  • 18. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.
  • 19. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.
  • 20. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.
  • 21. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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
  • 22. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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
  • 23. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.
  • 24. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.
  • 25. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.
  • 26. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.
  • 27. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Quapaw Case • Tribe amended its preliminary assessment of NRD to eliminate aquatic habitat equivalency analysis (HEA), focused solely on terrestrial HEA.
  • 28. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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).
  • 29. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.
  • 30. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Basis and Scope of Trusteeship • Aboriginal Rights • Treaties, including -- – Off-reservation Hunting, Fishing, Gathering Rights – Reserved Water Rights • Executive Orders
  • 31. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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).
  • 32. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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).
  • 33. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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).
  • 34. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.
  • 35. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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)?
  • 36. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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”
  • 37. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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).
  • 38. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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).
  • 39. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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).
  • 40. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.
  • 41. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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
  • 42. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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
  • 43. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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)
  • 44. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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.”)
  • 45. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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
  • 46. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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
  • 47. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. 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

Editor's Notes

  1. The statutory provisions in CERCLA recognizing a federally recognized tribe as a Natural Resource Trustee with standing to assert claims for Natural Resource Damages is just the starting point, and begs the question of WHAT natural resource the Tribe has trusteeship over. For what resources may a tribe assert a natural resource damage claim? This presentation will address the basis for determining the scope of trusteeship in an NRD claim, whether and how the presence or absence of a treaty affects that determination, and the benefits and burdens of participating in a Trustee Council, versus going it alone.