1. Administrative Law, Tribal Law and the Environment American Bar Association Section of Administrative Law and Regulatory Practice Mid-Year Meeting Seattle, Washington February 7, 2003

2. The Role of Tribal Governments as Natural Resource Trustees under Superfund Presented by: Richard A. Du Bey Short Cressman & Burgess PLLC 999 Third Avenue, 30th Floor Seattle, WA 98104 (206) 682-3333

3. Tribal Environmental Protection  Indian Reservations are the remaining homeland of Indian Tribes.  Tribes are entitled to the use and enjoyment of their reservation homeland and its associated on and off- Reservation natural resource base.  Tribal natural resource rights and entitlements frequently have significant cultural, as well as, economic value to the Tribe and its members.  The protection of Tribal natural resources necessarily includes protecting the environmental quality and habitat of such resources.

4. Federal Superfund Costs political pressure technical considerations the relationships among the parties The Superfund is process driven and the administrative process has a life of its own. The extent to which a Tribe can influence the Superfund process is impacted by:

5. Superfund In the 1986 Superfund Amendments and Reauthorization Act (SARA), Congress expanded the role of Indian Tribes in both clean- up and natural resource damage actions.

6. Superfund Generally, the governing body of an Indian Tribe is to be “afforded substantially the same treatment as a State” with respect to many provisions of Superfund (42 USC § 9626(a))

7. Scope of Liability PRPs responsible for the release of hazardous substances into the environment face liability under: Federal; Tribal; and State law for clean-up costs and for injury to natural resources caused by the release.

8. Superfund Section 107(f)(1) amended to extend the Indian Tribes’ ability to recover for damages to Tribal natural resources Indian Tribes may assert claims for both on- and off-reservation natural resource damages.

9. Natural Resource Damages (NRD) Superfund defines natural resources as: * * * land, air, water, groundwater drinking supplies, fish, wildlife habitats and other resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States, or any state, local, tribal or foreign government. * * *

10. NRD Liability The costs of assessing the injury + The costs of restoring, replacing or acquiring the equivalent natural resource(s) + Lost market and non-market use values) + Interest

11. Natural Resource Trustees Under Superfund the governing body of a Tribal government may appoint a Tribal trustee to: –Assess Damages –Conduct natural resource damage assessments –Implement restoration plans to restore, replace or acquire the equivalent of injured resources

12. Key Questions in developing strategy: Who are the players? What is the current status of the proceeding? Where is the process going? What is the “big picture?” What are the relative strengths of the parties’ positions?

13. Steps In The NRD Assessment Process Should we proceed with the damage assessment? What do we need to know? How should we obtain the information? What is the extent of the injuries? How did the injuries occur? How extensive are the injuries?

14. Principle Steps In The Natural Resource Damage Assessment Process What are the injuries worth? Collection of damages What do we need to do to repair the injuries? Implement / monitor planned activities

15. Tribal Role as NRD Trustee whether to facilitate coordination among EPA, the PRPs and the Trustees? whether the NRD claim will push PRPs (and EPA) to clean up contaminated on- Reservations lands and resources? whether doing so is serving the Tribe’s best interests?

16. Tribal NRD for Injury to Spiritual and Cultural Resources Native American spirituality cannot be separated from day-to-day activities. Focus is upon nature’s continuous renewal or the circle of life, not linear time or upon an individual or an isolated event.

17. Tribal Spiritual and Cultural Resources Tribal beliefs recognize that humans are a part of and cannot survive in the absence of the natural environment.

18. The eloquent words of Nez Perce Chief Hinmaton Yalatkit (Joseph) continue to resound with truth and spiritual clarity: The Earth and myself are of one mind. The measure of the land and the measure of our bodies are the same.

19. Tribal Spiritual and Cultural NRD Claims For Tribal NRD claims, broad statutory language permits, and arguably requires, that harm to spiritual and cultural resources be assessed and included in claim.

20. Examples of Tribal Spiritual and Cultural Resources as a Component of Tribal NRD Claims Cultural resources harmed due to the release of hazardous substances: –loss of traditional fishing, hunting and gathering activities –loss of ability to make traditional baskets –loss of treaty-protected fish and wildlife resources –loss of traditional foods or medicines –loss of language and ceremonies (associated with the activity or resource)

21. Acquisition of Equivalent Measure of NRD: –cost to restore, –rehabilitate, and/or –acquire equivalent If resources cannot be restored: acquisition of comparable lands for public parks or restoration of a similar natural area.

22. Where spiritual or cultural significance of resource has been destroyed Acquisition of equivalent might mean: –creation of program to preserve and teach oral history of lost site, activity, associated traditions, language –construction of school/interpretive center to teach about lost practices and associated language

23. Conclusion The value of cultural resources are recognized by statute and regulation Tribal NRD claims under CERCLA (and OPA), necessarily include: – damages caused by the release of hazardous substances into the environment that injure natural resources and harm the spirit and culture of indigenous community