A recent opinion from the U.S. District Court in the Northern District of Oklahoma may limit the recovery of natural resource damages (NRD) under the federal Superfund law.
In addition to the cleanup of Superfund sites, potentially responsible parties under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) may also be held liable for harm to natural resources caused by the release of hazardous substances, known as natural resource damages (NRD). Natural resources as defined by the statute include “land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States … any State or local government, any foreign government, [or] any Indian [T]ribe.” 42 U.S.C. § 9601(16). These governmental “trustees” are responsible for pursuing NRD claims.
In State of Oklahoma v. Tyson Foods, Inc., the Oklahoma Attorney General sued several Arkansas poultry farms under CERCLA for the contamination of the Illinois River watershed. On July 22, the U.S. District Court for the Northern District of Oklahoma rejected these NRD claims since the state had not joined the Cherokee Tribe, a trustee with jurisdiction over parts of the river. The court held that the Tribe was an indispensable party to the lawsuit, and without the participation of the Tribe or a clear division of the amount of natural resources held by each trustee, it dismissed the NRD claims under Rule 19 of the Federal Rules of Civil Procedure (“Required Joinder of Parties”). 2009 WL 2176337 (N.D. Okla. 2009).
The Tyson Foods decision conflicts with others that have indicated a single trustee may bring CERCLA claims for the full amount of natural resource damages, even in the absence of other affected trustees. See, e.g., United States v. Asarco, Inc., 471 F.Supp.2d 1063 (D. Idaho 2005). If Tyson Foods stands, the decision could render recovery of NRD under CERCLA more difficult, especially where a governmental PRP also happens to be a trustee of the affected resources.
