Washington Court Rules Tribes Are Not "Persons" Under CERCLA
In a June 19, 2009 ruling from the United States District Court, Eastern District of Washington, in Pakootas v. Teck Cominco, Judge Lonny Suko held that Indian Tribes were not subject to CERCLA liability because they are not “persons” as defined under the statute.
In this action, defendant Teck Cominco Metals Ltd. (“Teck”), a Canadian corporation, brought a counterclaim against plaintiff Confederate Tribes Of The Colville Reservation (“Tribes”) for its alleged contribution of hazardous substances into Lake Roosevelt in Coulee Dam, Washington. The Tribes moved to dismiss the counterclaim, contending that they were not “person[s]” subject to liability under CERCLA, 42 U.S.C. Section 9607(a). This section imposes liability upon “person[s]” for costs incurred in responding to a release of hazardous substances. “Person[s]” is defined in Section 9601(21) as an “individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, United State Government, State, municipality, commission, political subdivision of a State, or any interstate body.”
In considering the arguments, the Court ultimately held that CERCLA’s definition of “person” is plain: it does not include “Indian tribes.” As the Court noted, CERCLA has existed for over 30 years, and Congress has had “adequate opportunity” to specifically include “Indian tribes” among the entities covered by the term “person.” The Court further noted that such an interpretation would not lead to an “absurd result.” While Teck argued that Tribes could “operate a dump for the disposal of hazardous substances, with complete impunity under CERCLA,” the Court stated that such a conclusion was of “dubious validity.” A tribe’s “disposal activities,” according to the Court, were otherwise subject to regulation under other federal environmental statutes, such as the Resource Conservation and Recovery Act (RCRA) and the Safe Drinking Water Act (SDWA).
