Murky Waters: Indian Tribes and Natural Resource Damage Assessments
Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the 1990 Oil Pollution Act (OPA) Indian tribes may serve as trustees over natural resources damaged by various types of pollution incidents. Some tribes, like the Wampanoag Tribe in Massachusetts and the Menominee Indian Tribe of Wisconsin have seized this opportunity and participated in Natural Resource Damage Assessments (NRDAs). Hundreds of other tribes have not participated in the NRDA system. A closer examination of these two statutes, their associated regulations and the federal structure that guides most NRDAs reveals several significant barriers to increased tribal participation. In fact, due to a combination of statutory ambiguity, a lack of a robust regulatory structure and reluctance by the federal government to promote tribal participation, Indian tribes are automatically the weakest and most disadvantaged participants in the NRDA process. This situation is unfortunate because these statutes were not designed to make tribal trustees inferior to their federal and state counterparts. Furthermore, the persistence of this problem over 20 years after these statutes were enacted is disturbing.
Tribal reservations and trust lands held for tribes by the federal government cover 56.2 million acres of land in the United States. The lands held by tribes have been (and continue to be) popular areas to site hazardous and toxic waste disposal facilities. The presence of hazardous and toxic waste always brings with it the potential for CERCLA liability. Likewise, concerns about oil spills from pipelines, drilling rigs and shipping, which would trigger the OPA, are also common among tribal communities. In other words, the potential for participation by Indian tribes or the Bureau of Indian Affairs (BIA) in NRDAs under CERCLA and the OPA is significant, if tribes and the BIA fully participate in the process. Meanwhile, some tribes are actively working to conserve and restore their tribal lands. In California, ten tribes have formed the Intertribal Sinkyone Wilderness which protects some of the last of the lush redwood old-growth forests in the state. Similarly, in the Wallowa Mountains of Oregon, the Nez Perce Tribe and descendants of Chief Joseph are restoring the ‘precious lands.’ This phenomenon has been acknowledged among legal scholars as well, as part of the growing conservation trust movement. NRDAs could play an important role in the increase of environmental stewardship by tribes because one of the primary goals of an NRDA is to restore damaged ecosystems.
Congress enacted the OPA in 1990 after the massive Exxon Valdez oil spill. The NRDA provisions in the OPA, and CERCLA before it, were built upon state common law public trust and police power doctrines. These doctrines were enriched in the OPA and CERCLA to apply to federal and tribal trustees, and to better measure the true costs of harm to natural resources. The OPA creates a strict liability regime applicable to all responsible parties for removal costs and damages resulting from discharges of oil. Damages include harm to natural resources and subsistence use, among other categories. When natural resources are harmed in a spill, the responsible party is liable to the U.S. government, any state and any Indian tribe for “natural resources belonging to, managed by, controlled by, or appertaining to…” each of these entities. Similarly, CERCLA permits tribes, like state and federal trustees, to pursue natural resource damage claims for damages resulting from releases of hazardous substances. NRDAs are developed under both the OPA and CERCLA by trustees to establish their claims against the responsible party. These documents are a hybrid of scientific and legal analysis and trustees often cooperate with each other and with the polluter during the creation of an NRDA. DOI and NOAA have drafted similar optional regulations for NRDAs under CERCLA and the OPA, respectively, that break NRDAs into four steps: preassessment; injury determination and quantification; damage assessment; and restoration implementation.
The process of bringing Tribes into the NRDA system is convoluted and poorly adapted to the reality of tribal interests in natural resources. While there are a host of regulations discussing the NRDA procedures once the state, federal and tribal trustees are established, there is very little guidance on how tribal trusteeship is determined. Tribal jurisdiction is difficult to determine and in some ways undefined under the applicable statutes and regulations. What’s more, many tribes have unique hunting, fishing, subsistence and water rights that are not addressed by the statutes or their regulations resulting in much legal uncertainty in this area. The sparse tribal NRDA case law reflects the uncertainty created by CERCLA, the OPA and their accompanying regulations.
In the ongoing and joined U.S. v. Asarco Inc. and Coeur D’Alene Tribe v. Asarco Inc. CERCLA litigation, the issue of tribal jurisdiction is hotly disputed. In a 2003 Order, the District Court denied that natural resources on, under, over or associated with tribal owned or administered land “appertain to” tribes and further found that use of certain resources for cultural activities failed to create a trusteeship over them. The Court additionally limited both federal and tribal trusteeship by stating “which entity, if any, exercises the hands on day-to-day activity of the various natural resources” is the trustee and found “mere statutory authority” to be insufficient to establish trusteeship. In 2005, the District Court returned to the matter of trusteeship and sua sponte altered portions of its prior opinion. First, the court noted that “the remedial purpose of CERCLA was to give the statute a broad interpretation so as to restore and make whole the environment for the protection of the public and guard against destruction and damages to our natural resources.” In light of the purpose of the statute, the District Court decided to interpret the tribal and federal trustee’s claims of natural resources equally broadly. The back and forth of the Idaho District Court confirms the problems created by the vague notions of tribal jurisdiction from CERCLA that have contributed to a protracted litigation involving 100 years of mining history.
Similarly, off reservation resources remain unaddressed by the statutes and regulations. Tribes in Washington and Idaho have off reservation fishing rights grounded in treaties negotiated by Isaac Stevens. Several tribes in Michigan and Wisconsin also have off reservation hunting, fishing, and gathering rights established by treaty. In Alaska, Alaska Natives, who do not have reservations, have a legal right to engage in hunting and subsistence activities under the Alaska National Interest Lands Conservation Act. These Alaska Native rights are further protected by the federal government’s trust responsibility. The particularly complex issue of NRDAs and Alaska Natives, who are included in the definition of Indian Tribe under both the OPA and CERCLA, remains as a significant gap in the NRDA legal framework. A recent settlement in Michigan between the Saginaw Chippewa Tribe, the state of Michigan, the United States (as plaintiffs) and General Motors Corporation, and the Cities of Bay City and Saginaw (as defendants) is illustrative. As part of the settlement, tracts of land were set aside as wildlife preserves and one 110-acre tract was conveyed to the Tribe. According to an article analyzing the settlement, “the land transfer was explicitly made to make the Tribe whole in compensation for the damage done to the Tribe’s hunting and fishing rights.” While this is certainly a positive development for tribes, settlement language does not create binding law. Unless the regulations are amended, a consistent government policy is developed, or a court ruling is made on hunting and fishing rights, this type of claim will have to be dealt with on a case-by-case basis.
Moreover, tribes have reserved water rights under the Winters doctrine. The Winters doctrine recognized that tribes with federally established reservations have implicitly preserved water rights to meet the basic needs of the tribe. Over time, this doctrine was expanded to cover non-Indian public lands and resources. To the extent that there is pollution incident that affects water flowing onto the reservation or into the groundwater beneath the reservation, a tribe would have an interest. Again, the statutes and regulations under CERCLA and the OPA fail to address how tribal water rights fit in to the NRDA scheme and further regulatory or policy guidance is needed.
Huge increases in regulatory and policy guidance are needed to inform tribes of how they can enter these processes and to guide the co-trustee agencies that work with tribes. Specifically, additional regulations establishing the role of the BIA in NRDAs is critical, as well as regulations guiding the establishment of tribal jurisdiction and clarifying trusteeship by Alaska Native villages. Federal agencies also need to stop avoiding including tribes in NRDAs and should start reaching out to tribes in the same manner they reach out to state agencies. If all these actions were taken, tribal participation would be more organized and streamlined, to the benefit of both tribes and the agencies themselves. Tribes should no longer be denied the full opportunity to participate in NRDAs and to restore their lands and natural resources. This is an opportunity for tribes to improve their quality of life as well as the quality of the environment used by all U.S. citizens and it should no longer be permitted to go to waste.
-Emily Hildreth, Senior Projects Editor
 Clay Smith & Larry Long, eds., American Indian Law Deskbook, 455 (University Press of Colorado, 4th ed.)
 NOAA, Damage Assessment Restoration and Remediation Program, http://www.darrp.noaa.gov/index.html (last visited Dec. 3, 2010).
 Bureau of Indian Affairs, FAQs, http://www.bia.gov/FAQs/index.htm (last visited Dec. 3, 2010).
 See e.g., Daniel Brooks, Environmental Genocide: native Americans and Toxic Waste, The Am. J. of Econ. & Soc. (Jan. 1998), available at http://findarticles.com/p/articles/mi_m0254/is_n1_v57/ai_20538772/pg_3/?tag=content;col1. See also, Scientific American, Reservations about Toxic Waste: Native American Tribes Encouraged to Turn Down Lucrative Hazardous Disposal Deals (March 31, 2010) http://www.scientificamerican.com/article.cfm?id=earth-talk-reservations-about-toxic-waste.
 See e.g., Indigenous Environmental Network, IEN Fights to Shut Down the Tar Sands, http://www.ienearth.org/ien-pipeline.html (last visited Dec. 5, 2010).
 Charles Bowden, Native Lands, Nat’l Geographic, Aug. 2010, at 90.
 Id. at 95.
 See generally Mary Christina Wood & Zachary Welcker, Tribes as Trustees Again (Part I): The Emerging Tribal Role in the Conservation Trust Movement, 32 Harv. Envtl. L. Rev. 373 (2008).
 See Donna R. Christie & Richard G. Hildreth, Coastal and Ocean Management Law 297-98 (Thomson/West 2007).
 See Allan Kanner & Mary E. Ziegler, Understanding and Protecting Natural Resources, 17 Duke Envtl. L. & Pol’y F. 119, 124-29 (2006); Laura Rowley, Comment, NRD Trustees: To What Extent are they Truly Trustees?, 28 B.C. Envtl. Aff. L. Rev. 459-63 (2001).
 Responsible parties include owners, operators, permittees and lessees of vessels, onshore facilities, offshore facilities, deepwater ports and pipelines. 33 U.S.C. §2701(32) (2006).
 Removal costs are costs incurred by the U.S., a State or an Indian Tribe in accordance with applicable federal or state laws, and costs incurred by any person consistent with the National Contingency Plan. 33 U.S.C. §2702(b)(1).
 See 33 U.S.C. §2702(b)(2).
 Indian Tribes are defined in the statute as “any Indian tribe, band, nation, or other organized group or community, but not including any Alaska Native regional or village corporation, which is recognized as eligible for the special programs and services by the United States to Indians because of their status as Indians and has governmental authority over lands belonging to or controlled by the tribe.” 33 U.S.C. §2701(15). The same definition is used by both the OPA and CERCLA.
 33 U.S.C. §2706(a).
 42 U.S.C. § 9607(f)(1) (2006). See also Carole Goldberg et al., Cohen’s Handbook of Federal Indian Law 803 (2005 ed.)
 Valerie Ann Lee, et al., The Natural Resource Damage Assessment Deskbook 2 (Environment Int’l Ltd. 2002).
 Coeur D’Alene Tribe v. Asarco Inc., 280 F. Supp.2d 1094 (D. Idaho 2003); United States v. Asarco Inc., 471 F. Supp.2d 1063 (D. Idaho 2005).
 Coeur D’Alene Tribe v. Asarco Inc., 280 F. Supp.2d 1094, 1116 -1117 (D. Idaho 2003).
 Id. at 1115-1116 (emphasis added).
 United States v. Asarco Inc., 471 F. Supp.2d 1063, 1067 (D. Idaho 2005) (“Regarding the particular issue of trusteeship, the Court finds after completing further research that it may have been in error with its prior ruling.”)
 Coeur D’Alene Tribe v. Asarco Inc., 280 F. Supp.2d 1094, 1101 (D. Idaho 2003).
 See Washington v. Washington State Commercial Passenger Fishing Vessel Assoc., 443 U.S. 658, 664-69 (1979).
 David H. Getches, et al. Federal Indian Law 876-80 (West 2005).
 Rebecca Tsosie, Climate Change, Sustainability and Globalization: Charting the Future of Indigenous Environmental Self Determination, Envtl & Energy L. & Pol’y J. 188, 200 (2009).
 Jacqueline P. Hand, Protecting the Seventh Generation, Mich. B.J. 28 (July 2004).
 Winters v. United States, 207 U.S. 564 (1908).
 Hope M. Babcock, Reserved Indian Water Rights in Riparian Jurisdictions: Water, Water Everywhere, Perhaps Some Drops for us, 91 Cornell L. Rev. 1203, 1220-29.
 Id. at 1220.
 Id. at 1221.