Tribe May Use State Common Law to Pursue Natural Resource Damages at Federal CERCLA Site

A federal district court recently held that a Native American tribe in Oklahoma can pursue natural resource damages (“NRD”) claims under State common law at a listed CERCLA site, even when EPA is currently engaged in investigatory work at the site and has not yet selected a remedy. See Quapaw Tribe v. Blue Tee Corp., N.D. Okla., No. 03-0846 (Feb. 23, 2009). The decision on state common law claims stands in contrast to an August 2008 ruling by the same court, barring the same tribe from bringing federal NRD statutory claims until EPA selects a remedy for the site in question. By amending its complaint to drop the federal statutory claims, and in reliance on a related decision, New Mexico v. General Electric,[1] the court ruled that the tribe can move forward to pursue natural resource damages under its state causes of action.

Site Background

The Tar Creek Superfund Site is located on the Quapaw Tribe reservation in northeastern Oklahoma. The site became contaminated by heavy metals from millions of tons of chat piles and tailing ponds leftover from seventy years of mining. EPA listed the site on the National Priorities List (“NPL”) in 1983, and has continued to investigate contamination sources and perform cleanup activities since that time. Although EPA has selected remedies for some of the operable units within the site, it has yet to address metals in sediments in river basins in one particular operating unit.

Litigation Background

The Quapaw Tribe initially raised common law claims against seven mining companies, and then followed suit with a series of amended complaints asserting CERCLA NRD claims for lost use, restoration, and replacement damages against both private and federal defendants. CERCLA authorizes these NRD claims against PRPs in case of an injury to, destruction of, or loss of natural resources. Courts have interpreted NRD claims to include damages due to interim loss of use, which is the “value of lost use of the damaged resources from the time a hazardous substance is released to the time of restoration.”[2] In her first decision in Quapaw Tribe v. Blue Tee Corp., Judge Egan of the United States District Court for the Northern District of Oklahoma held that the Tribe could not pursue federal NRD clams related to sites on the NPL because CERCLA (42 U.S.C. §9613(g)) does not allow Trustees to bring claims before EPA selects a remedial action, so long as EPA is diligently pursuing selection of a remedy. See M. MacCurdy, NRD Claim for “Lost Use” Ruled Premature Before Remedy Selected, Marten Law Group Environmental News, August 15, 2008. In effect, this put a long-term hold on the Quapaw Tribe’s federal NRD claims at the Tar Creek Superfund site.

Recent Decision

In response to the 2008 decision, the Tribe amended its complaint to assert claims for “lost use” of its natural resources under Oklahoma common law. In doing so, the tribe sought to take advantage of New Mexico v. General Electric, in which the Tenth Circuit allowed for a state law claim for loss-of-use NRD if the claim was supported by evidence and the requested remedy would not interfere with CERCLA’s goals of replacement and restoration of a contaminated natural resource.[3] The Tribe crafted its amended complaint to comply with this holding, alleging that between the early 1900s and the 1970s, mining companies left behind tailing ponds and chat piles, contaminating the soil and groundwater and resulting in the loss of use of natural resources within their lands. Alleging nuisance, negligence and strict liability actions on Oklahoma law, the Tribe seeks “such sums … to restore, replace, or acquire the equivalent of such natural resources.” An alleged contributor to the Tar Creek Site, Burlington Northern Santa Fe Railway (“BNSF”) moved to dismiss the Tribe’s newest claims, arguing that it was “nothing more than an attempt to avoid the timing requirements and limitations on damages provided by CERLCA.”[4] Judge Egan rejected BNSF’s argument, holding that the Tribe’s state law claims could move forward.

The court also rejected BNSF’s “actual conflict” argument, noting that conflict preemption requires the state law to be a “material impediment to the federal action, or thwart the federal policy in a material way.”[5] In this case, the court held that BNSF’s concern that an award of NRD claims would invade BNSF’s financial resources and ability to comply with the CERCLA cleanup was too attenuated to justify preemption.

Finally, the court rejected BNSF’s argument that pre-1980 claims were barred under a CERCLA provision disallowing NRD claims for damages when the damages occurred before December 1980. Because the tribe had limited its state NRD request to the cost of restoring or replacing damaged natural resources, the court held that they did not conflict with CERCLA’s remedial scheme and were not preempted.[6]

Evidentiary and Standing Hurdles Remain for the Tribe

If discovery reveals additional facts that show that the Tribe’s NRD claims create a conflict between state and federal law, the court may re-visit the issue: “[T]he Court’s ruling is based only on the pleading and defendants may renew a preemption argument if the relief sought [by] the Tribe, as shown by the evidence adduced during discovery, would create a conflict between state and federal law.”[7] Further, BNSF has challenged the standing of the Quapaw Tribal Business Committee, asserting that it is not a sovereign capable of raising NRD claims. Similar standing challenges have been filed by other PRPs, but the court has not yet ruled on these issues.

Conclusion

Combined with an earlier decision in Confederated Tribes and Bands of the Yakama Nation v. United States[8] (allowing Tribes to recover assessment costs as incurred), the ruling in Quapaw Tribe v. Blue Tee Corp lowers the bar for tribes seeking to pursue NRD claims at federal cleanup sites.

For more information about NRD claims or other claims under CERCLA contact Alyssa Moir or any other member of Marten Law Group’s Environmental Litigation practice group.