U.S. District Courts in Oregon and Washington Allow Indian Tribes to Recover Oversight and Enforcement Costs Under CERCLA
Two recent federal court decisions have expanded the range of costs that Indian tribes may recover from potentially responsible parties (PRPs) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). See Confederated Tribes and Bands of the Yakama Nation v. United States, No. 3:14-CV-01963-PK, 2016 WL 406344 (D. Or. Feb. 1, 2016) and Pakootas v. Teck Cominco Metals, Ltd., No. CV-04-256-LRS (E.D. Wash. Apr. 1, 2016) (“April 1 order”). These decisions, both involving contamination at sites along the Columbia River in the Pacific Northwest, clarify that Indian tribes are sovereign entities that need no special authority to recover either oversight or enforcement costs under 42 U.S.C. § 9607(a)(4)(A). The decisions offer new promise for tribes seeking to play a larger role in influencing CERCLA cleanups both within and outside of Indian country. They also represent increased financial exposure for PRPs at many contaminated sites.
Yakama Nation v. United States
In Yakama Nation, the U.S. District Court in Oregon held that CERCLA compelled the federal government to reimburse the Confederated Tribes and Bands of the Yakama Nation for past and future costs associated with overseeing cleanup of the Bradford Island Superfund site. The site is owned and operated by federal PRPs, including the U.S. Army Corps of Engineers. The Corps of Engineers began cleanup efforts in 1997.
In 2014, Yakama Nation sued the government for cost recovery under 42 U.S.C. § 9607(a)(4)(A). Yakama Nation sought to recover approximately $100,000 in response costs, including costs associated with what it characterized as “oversight of the response actions taken by the [government].” Specifically, Yakama Nation sought costs associated with meetings, correspondence, and communications with the government, as well as costs associated with reviewing and commenting on the government’s cleanup planning documents. On cross motions for summary judgment, the district court largely adopted the magistrate judge’s findings and recommendation (F&R), holding that Yakama Nation could recover past oversight costs. The district court also declared that the government was liable for future Yakama Nation oversight costs.
PRPs are liable for “all costs of removal or remedial action incurred by the United States Government or a state or an Indian tribe” at a facility, as long as those costs are “not inconsistent” with federal cleanup regulations known as the “National Oil and Hazardous Substances Pollution Contingency Plan” (NCP). See 42 U.S.C. § 9607(a)(4)(A). Consistency with the NCP is presumed, and PRPs carry the burden of demonstrating that federal, state, or tribal response costs are not consistent with those regulations. Wash. State Dep’t of Transp. v. Wash. Natural Gas Co., PacifiCorp, 59 F.3d 793, 799–800 (9th Cir. 1995). Courts have repeatedly held that indirect costs of overseeing cleanup actions, when incurred by the federal government, are recoverable response costs under 42 U.S.C. § 9607(a)(4)(A). See U.S. v. E.I. du Pont de Nemours & Co., Inc., 432 F.3d 161, 166, 179 (3d Cir. 2005).
In this case, the government argued that Yakama Nation’s oversight costs were not response costs because—unlike the federal government—Yakama Nation has no specific authority under CERCLA or the NCP to oversee cleanup actions conducted by other parties. The district court rejected this argument, adopting the magistrate’s conclusion that CERCLA “does not contain an authority requirement.” See F&R, slip op. at 8.
Pakootas v. Teck Cominco Metals
In the Pakootas case, the U.S. District Court for the Eastern District of Washington held that an Indian tribe could recover enforcement costs—including attorneys’ fees—related to its involvement in litigation at another contaminated stretch of the Columbia River.
This Pakootas decision is the latest of many twists in a long-running CERCLA case involving Teck’s “Trail Smelter,” which is located just across the border from Washington in Canada. The Confederated Tribes of the Colville Reservation (Colville Tribes) recently brought an action to recover more than $9 million in costs from Teck. The Colville Tribes’ cost recovery claim primarily involved fees and expenses for consultants, testifying experts, and attorneys.
The district court initially granted partial summary judgment to Teck, holding that the Colville Tribes could not recover $750,000 in attorneys’ fees it advanced to two individual tribal plaintiffs for a citizen suit seeking to enforce a unilateral administrative order issued by EPA. See Pakootas v. Teck Cominco Metals, Ltd., No. CV-04-256-lRS, slip op. at 21 (E.D. Wash. Nov. 16, 2015). In that opinion, the district court concluded that only the federal government could recover “enforcement costs”—defined by the court to mean “attorney’s fees attributable to litigation”—under 42 U.S.C. § 9607(a)(4)(A). Id. at 11–12. The district court preserved claims for approximately $8.3 million in additional expenses, including non-litigation attorneys’ fees, holding that the Colville Tribes could seek to prove at trial that those expenses were recoverable response costs rather than enforcement costs. See id. at 21.
After trial on the Colville Tribes’ remaining expenses, the district court reconsidered and reversed its earlier partial summary judgment order sua sponte. April 1 order, slip op. at 2–3. In its new opinion, the district court noted that “[i]t is a fundamental undisputed proposition that the Tribes are a government, a sovereign entity, just like the federal government and a State,” and that CERCLA “lumps these sovereigns together” for purposes of cost recovery claims. Id. at 6. Because tribes and states “are governmental entities with inherent enforcement authority, unlike private parties,” the district court found it irrelevant that only the federal government has statutory enforcement authority under CERCLA. Id. at 8–10 (emphasis added).
Again, Indian tribes are entitled to recover “all costs of removal or remedial action” from PRPs, so long as those costs are not inconsistent with the NCP. 42 U.S.C. § 9607(a)(4)(A). The terms “removal” and “remedial action,” as used in the statute, “include enforcement activities related thereto.” 42 U.S.C. § 9601(25). Because the Colville Tribes have inherent enforcement authority as a sovereign entity, the district court’s April 1 order in Pakootas held that they could recover all enforcement costs—including litigation-related attorneys’ fees—under 42 U.S.C. § 9607(a)(4)(A). April 1 order at 11–12. Indeed, on August 12, 2016, the Court awarded the Colville Tribes $8.25 million in past response costs, of which $4.8 million represented attorneys’ fees and litigation costs.
Plain Language, Unprecedented Outcomes
Both the Yakama Nation and Pakootas decisions are unprecedented. To the authors’ knowledge, no court prior to Yakama Nation has explicitly awarded an Indian tribe oversight costs, like those typically awarded to the federal government, in an action under 42 U.S.C. § 9607(a)(4)(A). Neither party in that case identified such authority. Likewise, the Pakootas decision openly recognizes that “[n]o court, at least in any published decision,” has ever before “determined that an Indian Tribe (or a State for that matter) is, like the federal government, entitled to recover response costs for ‘enforcement activities’ in a § 9607(a)(4)(A) cost recovery action.” Id. at 5.
Despite breaking new ground, Yakama Nation and Pakootas are both ostensibly rooted in a straightforward application of plain statutory language. Both decisions principally cite CERCLA’s provision authorizing “the United States Government or a State or an Indian tribe” to recover “all costs” of removal or remedial action not inconsistent with the NCP. 42 U.S.C. § 9607(a)(4)(A) (emphasis added). Strict reliance on the statutory text is consistent with the U.S. Supreme Court’s approach to interpreting CERCLA. See CTS Corp. v. Waldburger, __ U.S. __, 134 S. Ct. 2175, 2185 (2014) (“The Court of Appeals supported its interpretation of [CERCLA’s discovery rule] by invoking the proposition that remedial statutes should be interpreted in a liberal manner. The Court of Appeals was in error when it treated this as a substitute for a conclusion grounded in the statute’s text and structure.”); see also Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 610 (2009); United States v. Atl. Research Corp., 551 U.S. 128, 141 (2007); Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 159 (2004).
The magistrate judge in Yakama Nation observed that “the policy underpinning CERCLA strongly suggests the statute permits Yakama Nation to engage in oversight response actions with respect to the Bradford Island cleanup.” F&R, slip op. at 9. But it appears that what ultimately mattered most, in both Yakama Nation and Pakootas, is that CERCLA’s statutory language puts Indian tribes on equal sovereign footing with the federal government and states when it comes to recovery of response costs from PRPs. See id. at 8 (“The text of CERCLA does not contain an authority requirement. . . .”) (emphasis added); April 1 order at 10–12 & n.8 (citing F&R).
Implications and Open Questions
A key question raised by the Yakama Nation and Pakootas decisions is whether CERCLA permits recovery of tribal oversight and enforcement costs at contaminated sites located outside of Indian country. The Yakama reservation in Washington does not border the Bradford Island cleanup site or the Columbia River at all. The Colville Reservation, also in Washington, borders only a portion of the Upper Columbia River cleanup site at issue in the Pakootas case.
Neither decision addresses the question of territorial or jurisdictional limits on tribal involvement at contaminated sites. Without such limits, numerous tribes could conceivably seek to participate in the cleanup of any site. Large sites—particularly aquatic sites where contamination implicates treaty rights—can involve multiple tribes acting independently. Columbia River contamination could potentially affect the treaty rights of tribes other than the Yakama Nation and Colville Tribes. Indeed, Yakama Nation is one of six tribal entities involved in cleanup efforts at the Portland Harbor Superfund site, located on a tributary of the Columbia River. (Both Oregon and Washington, too, could theoretically claim an interest in the Columbia River as a key resource bordering both states.) Nevertheless, nothing in Yakama Nation or Pakootas necessarily ties cost recovery for oversight and enforcement costs to an established treaty right or any particular type of interest in a given cleanup.
Of course, a tribe or state seeking to enforce CERCLA through litigation would have to satisfy Article III standing requirements to bring an enforcement action. But, Article III standing would not necessarily hinder a cost recovery claim once a tribe has in fact incurred enforcement costs. As for oversight costs, the NCP provides that tribes can be treated like states for purposes of cleanup actions only if, among other things, they have “jurisdiction” over a site. 40 C.F.R. §§ 300.5, 300.515(b). Yakama Nation implicitly suggests, however, that this language does not preclude tribes from seeking to recover response costs incurred at any site in an action under 42 U.S.C. § 9607(a)(4)(A).
Taken at face value, neither Yakama Nation nor Pakootas limits the possibility that multiple tribes and states might engage in overlapping or even duplicative oversight and enforcement efforts and each seek to recover the costs of that work from PRPs. The decisions here suggest that PRPs could face multiple cost recovery claims from multiple tribal and state parties at any given site. Those costs, and the costs of defending one or more cost recovery claims, represent an area of significant financial exposure for PRPs. For tribes, on the other hand, Yakama Nation and Pakootas offer new opportunities to participate in and influence cleanup actions at contaminated sites governed by CERCLA.
Considerations Going Forward
After Yakama Nation, PRPs facing claims for recovery of tribal oversight costs should focus their defense efforts on the substantive nature of the specific costs for which recovery is sought. Regardless of the policy or legal presumptions in favor of allowing tribes and states to recover response costs, such costs must actually be “costs of removal or remedial action” in the first place. 42 U.S.C. § 9607(a)(4)(A). That is, even if tribal “oversight costs” are generally considered response costs, it is possible that specific tribal oversight costs can be attacked as outside the statutory scope of removal and remedial action. Indeed, the district court in Yakama Nation specifically noted that while the government would be liable for any future tribal oversight costs at the Bradford Island site, Yakama Nation “will still be required, in any future action, to demonstrate that the actions for which it is seeking its costs are response actions under CERCLA.” 2016 WL 406344, at *2 (internal quotation marks omitted). This may be an onerous task for PRPs, but both Yakama Nation and Pakootas appear to foreclose any argument that tribes are inherently limited to recovering a narrower range of response costs than the federal government.
Both Yakama Nation and Pakootas also highlight how negotiated agreements can help PRPs control and minimize liability for tribal oversight and enforcement costs. PRPs should consider actively engaging with tribes, together with states and the federal government, and agreeing at the outset to fund certain tribal activities at a cleanup. This is not necessarily a novel approach, as PRPs sometimes currently agree to private cost-sharing arrangements and even formal consent decrees under which tribes recover oversight costs. But there is now added incentive for PRPs to minimize future exposure to cost recovery claims deriving from independent tribal oversight and enforcement activities. In exchange for increased funding under an agreement, tribes may be willing to waive future cost recovery claims for expenses that exceed agreed-upon funding amounts. Similarly, PRPs may be able to avoid paying tribes’ enforcement costs by folding tribal parties into initial administrative orders with EPA, or via separate commitments made in PRP–tribal funding agreements. PRPs face uncertainty identifying those tribes from whom they may face future cost recovery claims, however, because neither Yakama Nation nor Pakootas limits tribal cost recovery claims to work related specifically to contamination at sites in Indian country.
For Indian tribes, Yakama Nation is important because it increases the financial feasibility of participating in cleanups, regardless of whether the lead agency is a tribe or even whether the cleanup is in Indian country. Similarly, the latest Pakootas decision reduces financial disincentive for a tribe to take independent legal action to enforce CERCLA. For PRPs, these decisions likely represent an expansion of financial exposure in CERCLA cleanups and litigation, particularly where more than one tribe—or perhaps more than one state, too—becomes involved at a site together with the federal government.
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An earlier version of this article first appeared in the August 2016 Superfund and Natural Resource Damanges Litigation Committee Newsletter published by the American Bar Association’s Section of Environment, Energy, and Resources.
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