CHAPTER 9 THE ROLE OF INDIAN TRIBES IN RECOVERING NATURAL RESOURCE DAMAGES UNDER CERCLA AND THE OIL POLLUTION ACT

• Jurisdiction: United States

Indian Law and Natural Resources: The Basics and Beyond (Sep 2017)
CHAPTER 9
THE ROLE OF INDIAN TRIBES IN RECOVERING NATURAL RESOURCE DAMAGES UNDER CERCLA AND THE OIL POLLUTION ACT
Adam S. CohenMave A. Gasaway
Davis Graham & Stubbs LLP
Denver, CO ¹

[Page 9 - 1]

ADAM S. COHEN is a Partner with Davis Graham & Stubbs LLP, in Denver, CO. Adam assists clients with matters involving hazardous substances and hazardous wastes, mining impacts, water quality, natural resource damages, and other environmental concerns. His practice generally focuses on: environmental litigation, including toxic tort, personal injury, property damage, and CERCLA or "Superfund" cases; defending clients in administrative enforcement proceedings, including water quality and hazardous waste management proceedings; environmental due diligence in association with corporate and real estate transactions; and working long-term with clients facing complex compliance questions or problems associated with environmental statutes, regulations, and administrative proceedings. Working with other DGS attorneys, Mr. Cohen has helped to obtain dismissals and significant costs awards or highly favorable settlements in nearly 30 environmental class action, property damages, and personal injury lawsuits within the past four years. He was a key player on trial teams that: successfully defended two large class action lawsuits alleging damages to residential neighborhoods in Denver and Colorado Springs from contamination of groundwater and indoor air; obtained summary judgment dismissing a lawsuit seeking damages for a major groundwater cleanup effort; successfully defended approximately 20 related lawsuits alleging personal injury due to environmental exposure to cleaning solvents (all cases dismissed); and obtained summary judgment dismissing a lawsuit alleging liability for municipality's groundwater treatment costs.

Through this litigation, he has developed particular expertise in defending claims alleging environmental harm and personal injury due to groundwater contamination from releases of chlorinated solvents and petroleum products. He is also working on cleanup projects at several abandoned hard-rock mining sites, some of which involve litigation under the federal Superfund law or its state equivalent. In connection with this litigation, as well as at other sites where litigation has not occurred, Mr. Cohen works with clients to facilitate compliance with administrative cleanup requirements relating to groundwater, soil, indoor air, and hazardous waste and to monitor the progress of site remediation activities under state and federal administrative orders. He has helped clients assess the need for and obtain environmental liability insurance coverage and insurance recoveries where environmental remediation costs have been incurred. He has also worked to establish site-specific water quality standards that were incorporated into industrial and mine-site effluent discharge permits; obtain administrative approval of plans for soil and groundwater cleanup projects under Colorado's voluntary cleanup statute; and complete remediation efforts at several leaking underground storage tank (LUST) sites (in Colorado, Indiana, New Jersey, and Florida) under state oversight. Mr. Cohen also has counseled a number of the firm's clients on stormwater permitting and compliance matters, including enforcement proceedings brought by the Colorado Water Quality Control Division and Colorado Oil & Gas Conservation Commission involving oil and gas sites, residential construction sites, utility installations, and industrial facilities. Violations alleged in these proceedings included deficient stormwater management plans, lack of stormwater inspections and reporting, and inadequate or absent best management practices. Mr. Cohen is familiar with the stormwater regulatory program, having spoken on the topic and participated in a 2006/2007 stakeholder process led by the Colorado Water Quality Control Division in connection with proposed revisions to Colorado's stormwater permitting regulations. Mr. Cohen also has performed field audits of clients' facilities to identify potential deficiencies in their stormwater management practices. He understands first-hand the types of structural and non-structural practices that provide effective sediment and erosion control as well as the types of control measures that regulators expect to see in the field. Mr. Cohen received his B. A. in biological science from Cornell University and his M. S. in environmental toxicology from the University of Wyoming. Prior to law school, Mr. Cohen spent seven years working as an environmental consultant with a national firm's office in Fort Collins, Colorado. His areas of expertise included ecological risk assessment, aquatic toxicology, derivation of water quality standards, and spill-related emergency response.

MAVE A. GASAWAY is an associate in the Environmental and Natural Resources Groups of Davis Graham & Stubbs LLP. Her practice focuses on regulatory and litigation counseling in the fields of environmental, natural resources, energy, and oil and gas law for clients in a variety of industries, including oil and gas, manufacturing, renewable energy (wind, solar, and biofuels), mining, railroads, and non-profits. Mave's experience includes representing clients in environmental litigation and administrative hearing matters involving the Clean Water Act (CWA), the Clean Air Act (CAA), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Resource Conservations and Recovery Act (RCRA), similar state statutory counterparts, and common law toxic tort liability. Mave's practice also includes working with clients on regulatory, compliance, and permitting matters under the CAA, the CWA, RCRA, the Endangered Species Act, state statutory equivalents, and local land use laws. Mave has also worked with both developers and lenders on transactional matters for energy development projects. She has also worked on appeals before the Ninth Circuit, Tenth Circuit, and Colorado Court of Appeals involving CERCLA, RCRA, the National Environmental Policy Act, the National Forest Management Act, and the Administrative Procedure Act, among others. Prior to joining DGS, Mave served as a law clerk to the Honorable Jerome A. Holmes of the U.S. Court of Appeals for the Tenth Circuit. She also served as a law clerk to the Honorable Merideth Wright of the Vermont Environmental Court, and worked as an honors program law clerk at the U.S. Environmental Protection Agency's Office of General Counsel in Washington, D.C. She graduated summa cum laude from Vermont Law School, where she was the editor-in-chief of the Vermont Law Review. Mave is admitted to practice in Colorado and before the U.S. Court of Appeals for the Ninth and Tenth Circuits. She is a member of the American, Colorado, and Denver Bar Associations, the ABA Section of Environment, Energy, and Resources, the Environmental Section of the CBA, the Rocky Mountain Mineral Law Foundation, the Colorado Women's Bar Association, and the Asian Pacific American Bar Association. Mave is also a part of the 2016 COGA Energy Generation (EnGen) Leadership Program.

I. INTRODUCTION

The Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq. ("CERCLA"), and the Oil Pollution Act, 33 U.S.C. § 2701 et seq. ("OPA"), grant substantial authority to the United States, individual states, and Indian tribes to ensure that spills and releases of hazardous chemicals and petroleum are properly cleaned up, that injured natural resources are restored or replaced, and that damages are recovered to pay for the cost of the restoration or replacement and the value of the services lost to the public as a result of the injury. Although it can be time consuming, extremely expensive, and often fraught with dispute, in some ways determining how the cleanup gets done is the easy part of the process. Because of overlapping and sometimes conflicting interests between federal, state, and tribal trustees, natural resource damage assessment, restoration, and recovery can quickly get very complicated and contentious. Tribes have a key--and statutorily protected--role to play when the natural resources they own, control, manage, or that are held in trust for their members are affected. Particularly in the Rocky Mountain west, Indian tribes often will have a major, if not predominant, interest in the natural resources affected by a chemical release. But where releases spread across tribal and non-tribal public lands, and where the affected resources provide services to tribal members and non-tribal constituencies alike (which is often the case), it can be difficult to determine which trustee is rightfully entitled to perform the assessment, plan the appropriate restoration, and recover the damages. The statutes, regulations, and case law make clear that any monetary recovery must go towards restoring the resource and paying for lost services, regardless of who has trusteeship. And duplicative recoveries are expressly barred. But these authorities are only partially helpful in determining how conflicts get resolved.

This Article explores the interplay between tribal, federal, state, and private party roles under CERCLA and OPA and highlights some of the avenues for and limits on tribes' authority to recover natural resource damages (NRDs) at multi-trustee sites. Specifically, after first providing a general overview of CERCLA and OPA and laying out the statutory and regulatory framework governing NRDs, this Article discusses several topics that impact the role of tribal trustees in recovering NRDs, including co-trusteeships with other federal and state trustees and tribal trusteeship over certain types of on-and off-reservation lands and resources.

II. OVERVIEW OF CERCLA AND OPA

CERCLA and OPA were enacted to address...