LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 17
evidenced in United States v. Asarco, Inc., in which the plaintiffs, the United States, the Coeur
d’Alene Tribe of Idaho and the State of Idaho filed suit pursuant to CERCLA and the CWA for
injury to natural resources in northern Idaho resulting from the defendants’ mining activities. 58
A number of defendants moved for summary judgment, asserting that a settlement agreement
they had entered into with the State of Idaho precluded recovery by the Tribe or the United
States. 59
The United States argued that the State of Idaho did not have the authority to settle the
federal government’s claims regarding the same natural resources. 60
The court agreed with the
United States, stating “CERCLA does not give the state an exclusive right to bring a natural
resource damages action if the state files the first lawsuit claiming natural resource damages and
CERCLA does not prohibit more than one potential trustee from bringing a natural resource
damages action.” 61
The court’s decision that the record was insufficient to establish “the scope
of trusteeship of the plaintiff over the land and water at issue . . . [and] a more extensive factual
record needs to be reviewed regarding whether or not USA was in privity with the State and/or
the Tribe when the settlement agreements were entered with the defendants” demonstrates that
the occurrence of overlapping trustee authority is not an issue that can easily be resolved. 62
The overlap of trustee authority also underscores the differences by which various federal
trustees and their state or Indian tribe counterparts value NRD injuries and consider early dollar
settlements. All trustees will place a different value on the same natural resource. For instance,
natural resources may hold cultural or spiritual worth for an Indian tribe that are not considered
58 1998 WL 1799392, No. CV 96-0122-N-EJL, CV 91-342-N-EJL (D. Idaho March 31, 1998).
59 Id. at *5.
60 Id.
61 Id.
62 Id.
© 15
Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM