LSI 2010 NRD Santa Fe final conference binder 072110.pdf

David J. Lazerwitz of Farella Braun + Martel LLP Speaker 6: 4
Standing, cont.
• Standing issues
• Private parties may not recover
• Counties and cities may not recover, except where
designated by the Governor
• Overlapping trusteeship/co-trustees – no “double
recovery”
• Initial approach in Couer d’Alene to require each trustee to
submit evidence for court to determine damages in the
ratio or percentage of actual management or control
• Later approach in US v. ASARCO deemed plaintiffs, as a
whole, as trustees over resources; thereby leaving it to the
trustees to work out allocation among themselves
• Tribal standing/resources
• Cultural use of natural resources? (Couer d’Alene)
• Look to treaty rights/doctrines
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Standing, cont.
• Failure to join indispensable party
• Are all necessary trustees in the action?
• Traditional FRCP 19 “required party” analysis
• Oklahoma v. Tyson Foods
• State action over Illinois River watershed
• Motion to dismiss for failure to join Cherokee Nation
• Ruling:
• State didn’t follow required claim assignment process
• Nation had a direct interest in the watershed resources
• Absence would impair or impede Nation’s ability to protect
its interest and subject defendants to risk of incurring
double or inconsistent obligations
• State possessed adequate remedy if dismissed by refiling
and/or proceeding on injunctive relief claims
258 FRD 472 (N.D. Okla. 2009)
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Law Seminars International | Natural Resource Damages | 07/15/10 in Santa Fe, NM