LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 7
compensate both the government and the public for the injuries that they have suffered and will
continue to endure. Because our natural resources are being destroyed and disappearing at an
alarming rate, NRD litigation has become increasingly important in order to preserve these
natural assets for the public and for future generations.
II.
BRINGING AN NRD CLAIM
A. Who is the Proper Party to File Suit?
When an injured natural resource is privately owned, property laws dictate that the owner
of that natural resource is entitled to file suit and recover damages from a potentially responsible
party (“PRP”). In the United States, the Constitution, statutes and common law protect private
property rights. However, when natural resources owned by the public are damaged, questions
arise as to who is entitled to sue for damages on behalf of the public and what type of behavior
constitutes permissible use of public property. For example, an individual’s right to operate a
polluting facility on his private property must be balanced with the public’s right to have a river
adjacent to the property free from contamination. Ultimately, it is the governmental trustees who
have both the responsibility and affirmative obligation to protect natural resources held in trust
for the benefit of the public and to decide when and how to do so.
Natural resource trustees’ responsibilities include assessing the extent of injury to
natural resources and restoring natural resources. In order to execute these
responsibilities, a trustee can negotiate with PRPs to obtain PRP-financed or PRPconducted
assessment and restoration of natural resource injury, sue PRPs for the
costs of assessing and restoring the natural resource, or conduct the assessment
and restore natural resources and then seek reimbursement from PRPs, and, in
limited circumstances, from Superfund. 14
14 Allan Kanner, Tribal Sovereignty and Natural Resource Damages, 25 PUB. LAND & RESOURCES L. REV. 93, 107
(2004).
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM