(CN) - The Ninth Circuit Court of Appeals, on Wednesday, revived a claim brought by the Confederated Tribes of the Colville Reservation against a Teck Mining company found to have severely polluted the Columbia River, based on the loss of "cultural resources."
A federal judge previously ruled that the Comprehensive Environmental Response, Compensation, and Liability Act, also known as Superfund, law only covered harm to "land, fish, wildlife, biota, air, water, ground water, drinking water supplies and other such resources." But a three-judge panel disagreed, holding that the 1980 statute "authorizes damages for lost uses of injured natural resources in cases where the lost uses have a cultural dimension," as U.S. Circuit Judge Ronald Gould, a Bill Clinton appointee, wrote in the unanimous ruling.
Teck Resources runs a smelter on the Columbia River, ten miles north of the Canadian border. A 2018 ruling found the company dumped hundreds of tons of mercury and arsenic into the Upper Columbia from 1930 to 1995, along with thousands of tons of lead and tens of thousands of tons of zinc.
"What was once the lifeblood of the Tribes, now became a toxic dumping ground, impacting the relationship the Tribe had with the river," Gould wrote.
Two Native Americans sued Teck in 2004, later joined by the state of Washington and the Confederated Tribes of the Colville Reservation, which represents 12 Pacific Northwest tribes. The district court split the case into three phases. In the first, a federal judge found Teck liable for severe pollution. In the second, the court ordered the company to pay the tribes $3.4 million in "investigative expenses" and $4.9 million in attorneys' fees and prejudgment interest, while Washington reached a separate settlement.
In the third phase, the tribes and the state brought claims for natural resource damages, citing elevated mercury levels in fish and harm to riverbed organisms. The tribes also claimed compensation for the lost use of natural resources tied to their "unique relationship with the Upper Columbia River."
Teck sought summary judgment on the tribes' separate claim, and the district court agreed, ruling Superfund law didn't authorize damages for cultural resources.
On appeal, the tribes clarified they weren't seeking damages for "injured cultural resources," but for their "lost use of injured natural resources where their lost use has a cultural dimension in light of the Tribes' unique relationship with the Upper Columbia River," as Judge Ronald Gould wrote.
Gould concluded that losing "natural resources which have a cultural component, either because cultural perspectives inform the determination of the value of the interim lost use or because the injured natural resources have cultural uses" falls within Superfund's scope. The panel reversed the lower court and remanded the case for trial.
The panel was rounded out by U.S. Circuit Court Judge Richard Paez, another Clinton appointee, and Michael McShane, the Chief District Judge for the District of Oregon, sitting by designation.
Source: Courthouse News Service
