On April 17, 2025, the Ninth Circuit Court of Appeal will hear oral argument in Pakootas v. Teck Cominco on a question that has plagued CERCLA NRD practitioners and parties for years, if not decades: whether cultural resource damages are recoverable as an element of natural resource damages under CERCLA.
There has long been a lack of clarity in determining precisely what damages are recoverable as natural resource damages (NRD) under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA)[i]—and, in particular, whether injuries to cultural resources are compensable as NRD under CERCLA. Very few courts have weighed in (much less ruled) on the question, leaving practitioners and parties to parse textual differences in the various statutes that provide for recovery for NRD, implementing regulations (which are themselves non-binding), and legislative history for clues.[ii] And while the question at issue in the Ninth Circuit is narrow, the implications—to potentially responsible parties (PRPs) facing financial responsibility for loss of use from injuries to natural resources, to natural resource Trustees[iii] considering management of Trustee resources and determining how to apply funds recovered from PRPs for natural resource damages, to economists and other technical consultants tasked with analyzing lost use values, and, of course, to Tribes grappling with impacts to culturally significant resources and the lost Tribal uses associated with impacted natural resources —are enormous.
CERCLA’s two primary purposes are “to ensure the prompt and effective cleanup of waste disposal sites, and to assure that parties responsible for hazardous substances [bear] the cost of remedying the conditions they created.”[iv] CERCLA thus creates liability for cleanup and response costs for PRPs at sites where hazardous substances were disposed of or released. In addition to these cleanup costs, CERCLA also imposes damages liability on PRPs for injuries to natural resources.[v] Four other statutes similarly provide for recovery for natural resource damages: the Clean Water Act (CWA), the Oil Pollution Act (OPA), the National Marine Sanctuaries Act (NMSA), and the System Unit Resource Protection Act (SURPA, formerly known as the ‘Park System Resource Protection Act’ or ‘19jj’).[vi]
Under CERLA, natural resources are specifically and narrowly defined in a manner that invokes geological and biological entities: “land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources.”[vii] Under CERCLA, NRD may be recoverable to compensate Trustees for loss of use from injuries to these types of natural resources resulting from releases of hazardous substances. The question facing the Ninth Circuit in Pakootas is whether cultural resource damages—or, put another way, whether purely cultural losses resulting from impacts to these types of natural resources—are recoverable as an element of NRD under CERCLA.
Critical to this inquiry is the fact that while the CWA and OPA define natural resources in the same way as CERCLA—that is, by reference to geologic and biological entities[viii], the NMSA and SURPA broaden and extend the definition of “natural resources” to specifically include (NMSA) “any living or nonliving resource of a national marine sanctuary that contributes to the conservation, recreational, ecological, historical, education, cultural, archeological, scientific, or aesthetic value of the sanctuary”[ix], and (SURPA) “any living or non-living resource that is located within the boundaries of a System unit.”[x]
The Ninth Circuit has now stepped in where very few courts have previously opined. Notably, few courts have considered whether CERCLA allows for recovery for cultural resource damages or cultural service losses as an element of NRD, and only one court appears to have directly answered the question. In 2003, in Coeur D’Alene Tribe v. Asarco Inc., the Idaho District Court ruled that “[c]ultural uses of water and soil by Tribe are not recoverable as natural resource damages.”[xi] More recently, in 2023 in the In re: Gold King Mine Release matter, the New Mexico District Court similarly held that CERCLA’s statutory limitation that sums recovered as NRD may only be used “to restore, replace, or acquire the equivalent of [damaged] natural resources” applies[xii] to Tribes.
So, in October 2023, Defendant Teck Metals sought partial summary judgment in the District Court for the Eastern District of Washington on the tribal service loss NRD claim of the Confederated Tribes of the Colville Reservation (Confederated Tribes). The District Court held that “cultural resource damages are not recoverable as a matter of law” and granted Teck’s motion.[xiii] In denying the Confederated Tribes’ motion for reconsideration, the District Court rejected the Confederated Tribes’ attempt to distinguish between cultural resource damages (unrecoverable as CERCLA NRD) and cultural service losses as a recoverable element of CERCLA NRD.[xiv]
The Ninth Circuit will now weigh in on the question of whether cultural resource damages are recoverable under CERCLA, or if not, whether cultural uses of natural resources (i.e., cultural service losses) are distinct from cultural resource damages, and therefore recoverable under CERCLA as an element of NRD recovery. The implications and potential consequences that may flow from the Ninth Circuit’s ruling are enormous for PRPs and NRD Trustees. The question presented in the appeal may seem narrow and specific, but the issue highlights the lack of statutory and regulatory guidance addressing cultural resource damages or cultural service losses and how to quantify the same under CERCLA. And the implications to Tribes and PRPs are enormous given the unique nature of Tribal cultural service losses, the boundaries of what may be characterized as interim lost uses, and the limits that CERCLA establishes regarding how funds recovered as NRD may be used. In addition to these significant issues, the question of what constitutes recoverable or unrecoverable cultural resource damages also raises the specter of the potential for double recovery and complexities of overlapping Trusteeship. NRD practitioners are sure to be following oral arguments on April 17 and looking forward to the Ninth Circuit’s ruling.
[i] We all know by now that “CERCLA is not a model of legislative clarity.” Coeur D’Alene Tribe v. Asarco Inc., 280 F. Supp 2d 1094, 1108 (D. Idaho 2003).
[ii] Indeed, so few courts have weighed in on this issue that an article this author wrote in 2011 was cited as authoritative guidance on the question in the Pakootas v. Teck Cominco Metals summary adjudication briefing in the Eastern District of Washington.
[iii] For the purposes of CERCLA NRD recovery, Trustees include the United States, States, and Indian Tribes. 42 U.S.C. § 9601(16).
[iv] Mardan Corp. v. C.G.C. Music, Ltd., 804 F.2d 1454, 1455 (9th Cir. 1986).
[v] 42 U.S.C. § 9607(a)(4)(C).
[vi] CWA: 33 U.S.C. § 1321(f)(4); OPA: 33 U.S.C. § 2702(a), (b)(2); NMSA: 16 U.S.C. § 1443(a)(1); SURPA: 54 U.S.C. § 100722.
[vii] 42 U.S.C. § 9601(16).
[viii] CWA: 43 C.F.R. § 11.14(z) (“Natural resources or resources means land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources”); OPA: 33 U.S.C. §2701(20) (“’natural resources’ includes land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources”).
[ix] 16 U.S.C. § 1432(8).
[x] 54 U.S.C. § 100721(3).
[xi] Coeur D’Alene, 280 F. Supp. 2d at 1107, 1117. See also Kennecott Utah Copper Corp. v. United States Dep’t of Interior, 88 F.3d 1191, 1222 (D.C. Cir. 1996) (holding that industry petitioners’ challenge was not ripe for review, but rejecting DOI’s attempt to characterize an issue as whether CERCLA allowed for recovery for injuries to cultural services provided by a natural resource as opposed to whether CERCLA allowed for recovery for injuries to non-natural resources).
[xii] In re Gold King Mine Release in San Juan Cnty., Colo., on Aug. 5, 2015, 669 F. Supp. 3d 1146, 1155-57, n.3 (D.N.M. 2023) (citing CERCLA Section 9607(f)(1)).
[xiii] Pakootas v. Teck Cominco Metals, Ltd., No. 2:04-CV-00256-SAB, Order at 2:10-12 (E.D. Wash. Feb. 6, 2024).
[xiv] Id., Order at 3:6-9 (Apr. 10, 2024).
