District Court: Indian Tribes Not Subject to CERCLA Liability

The United States District Court for the Eastern District of Washington held on June 19 in Pakootas et al. v. Teck Cominco Metals et al., Case No. CV-04-256-LRS, that Indian tribes are not "persons" subject to liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. Section 9607(a). Congress enacted CERCLA on December 11, 1980, which provides broad federal authority to respond directly to releases or threatened releases of hazardous substances that may endanger either public health or the environment. It also imposes liability on "persons" for costs incurred in responding to the release of hazardous substances.

Pakootas v. Teck Cominco Metals Holding

In Pakootas, Teck Cominco Metals, Inc. (Teck) asserted two CERCLA counterclaims against the Confederated Tribes of the Colville Reservation (Tribes), an Indian tribe located in eastern Washington state, alleging that the Tribes had contaminated Lake Roosevelt. The judge granted the Tribes' motion to dismiss Teck's counterclaims, stating that these claims were "not premised on a cognizable legal theory" because—at least for CERCLA liability—the act does not define "person" to include Indian tribes. Pakootas at *4, 10.

CERLA Definition of "Person" Is Plain

In determining that Indian tribes are not "persons" under CERCLA, the court focused primarily on the statute's plain language. Specifically, the court used the "plain language" rule that "when the statute's language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms." Id. The court noted that under CERCLA Section 9601(21), "person" is defined as "an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, United States Government, State, municipality, commission, political subdivision of a State, or any interstate body." Id. at *3-4. "Indian tribe" is not expressly included in this list, but rather it is defined separately under CERCLA Section 9601(36). Id. at *4. The court found that CERCLA's "person" definition is plain and does not include Indian tribes. Id. Therefore, it held that CERCLA does not impose liability on Indian tribes. Id. at *4, 10.

CERCLA Expressly Provides for Liability to an Indian Tribe

Moreover, the court noted that CERCLA expressly provides for liability to an Indian tribe. Id. at *4. Section 9407(a)(4)(A) provides that any person who accepts or accepted hazardous substances for transport to disposal or treatment facilities, incineration vessels, or sites selected by that person, from which there is a release of hazardous materials, or a threatened release that causes the incurrence of CERCLA response costs, of a hazardous substance, is liable for all costs of removal or remedial action incurred by the United States government, the state, or an Indian tribe that are not inconsistent with the national contingency plan.

Section 9607(f) similarly provides, with some exceptions, that in the case of injury to, destruction of, or loss of natural resources, liability shall be to the United States government, to the state, or to any Indian tribe for natural resources belonging to, managed by, controlled by, or appertaining to such tribe, or held in trust for the benefit of such tribe, or belonging to a member of such tribe if such resources are subject to a trust restriction on alienation. However, CERCLA contains no similar express provision for the liability of an Indian tribe. Id. Consequently, the court reasoned that the cannon of statutory construction expression unius est exclusion alterius—the express inclusion of one thing implies exclusion of another—further supported its conclusion that Indian tribes are not "persons" subject to CERCLA liability. Id.

Congress Did Not Intend to Subject Tribes to CERCLA Liability

Finally, the court reasoned that Congress did not intend to subject Indian tribes to liability under CERCLA. The court refused to read sovereigns into the term "person" without affirmative evidence that Congress intended to include sovereigns. Id. at *4-5. It reasoned that, although Congress can waive a tribe's immunity from suit, that waiver must be clearly expressed by Congress. Id. at *5, 7. And, in CERCLA, waiver is not clearly expressed. CERCLA is silent on the issue of whether tribes are "persons," and there is no legislative history addressing the issue of whether Congress intended Indian tribes to be subject to liability under the act. Id. at *5. Additionally, Congress did not define "municipality," "association," or "consortium"—terms included in the definition of persons under Section 9601(21)—to include Indian tribes. The court found it to be highly unlikely that Congress would simply leave it to chance that a court would determine that an Indian tribe qualifies as an entity subject to CERCLA liability.

In short, the District Court found both that the plain language of CERCLA reveals that Indian tribes are not "persons" subject to liability under CERCLA, and that Congress intended to exclude Indian tribes from liability under that act. Id. at *10. Therefore, although CERCLA's provisions protect Indian tribes by proving for liability to tribes, Indian tribes themselves are not subject to CERCLA liability, at least according to Pakootas.

Pakootas Ruling Notable in Context of Tuscarora

The United States Supreme Court, in Federal Power Commission v. Tuscarora Indian Nation, held that "a general federal statute in terms applying to all persons includes Indians and their property interests" unless Congress expressly excludes them. Federal Power Comm'n v. Tuscarora Indian Nation, 362 U.S. 99 at 116. However, a federal statute of general applicability that is silent on the issue will not apply to tribes if (1) the law touches exclusive rights of self-governance in purely intramural matters, (2) applying the law to the tribe would abrogate rights guaranteed by Indian treaties, or (3) there is proof by legislative history or some other means that Congress intended the law not to apply to Indians on their reservations. Donovan v. Coeur d'Alene Tribal Farm, 751 F.2d 1113, 1116 (9^th Cir. 1985). In any of those three exceptions applies, Congress must expressly apply a statute to Indians before a court will hold that it applies to them. Id.

The Pakootas court failed to address the general rule expressed in Tuscarora or its Donavan exceptions. However, the Pakootas court did note both that "CERCLA is silent on the issue of whether tribes are covered as ‘persons'" subject to liability under the act, and that "there is no legislative history regarding whether Congress intended tribes to be subject to liability" under the act. Pakootas at *5.

It appears that, although "person" is specifically defined within the act, CERCLA is a statute of general applicability because it applies by its terms to "any person." See Section 9407; United States v. White, 237 F.3d 170, 173 (2d Cir. 2001) (stating that a specific tax statute is a statute of general applicability "because it applies by its terms to ‘any person'"). Therefore, it is probable that, barring one of the three Donovan exceptions, Indian tribes would be subject to CERCLA liability under the Tuscarora rule because Congress did not expressly exclude Indian tribes from liability under the act. See Federal Power Comm'n, 362 U.S. at 116.

Donovan Exception Could Apply—Arguably

Although the Pakootas court's analysis did not refer to Tuscarora, CERCLA could arguably fall under the third Donovan exception—that a generally applicable federal law silent as to tribes will not apply to tribes if there is proof by legislative history or some other means that Congress intended the law not to apply to Indians on their reservations. Donovan, 751 F.2d at 1116.

As discussed above, the Pakootas court found that CERCLA's plain language and the inclusion of reference to liability to Indian tribes and exclusion of reference to liability of Indian tribes within CERCLA clearly indicated Congress intended to exclude Indian tribes from liability under the act. Pakootas at *3-5, 10. Further, rather than focusing on Tuscarora and its Donovan exceptions, the Pakootas court focused on the rule that Congressional waivers of tribal sovereign immunity from suit require clearly expressed congressional intent. See id. at *5, 7.

Nonetheless, even considering the potential application of the third Donovon exception, the Pakootas court seemingly took an uncommon approach by interpreting CERCLA to exclude Indian tribes. See Donovan, 751 F.2d at 1115. The United States Court of Appeals for the Ninth Circuit noted in Donovan that although many of its decisions had upheld the application of general federal laws to Indian tribes, not one had held that an otherwise applicable statute should be interpreted to exclude them. Donovan, 751 F.2d at 1115. Therefore, the Pakootas court's determination that Indian tribes are not "persons" subject to CERCLA liability is notable in the context of Tuscarora, even considering the application of the third Donovon exception.