Cultural Capital: Ninth Circuit Clarifies Extent of Natural Resource Damages Under CERCLA

The Ninth Circuit Court of Appeals recently held that federal Superfund law authorizes claims by natural resource trustees for interim lost uses of natural resources that have a cultural component. The case, Confederated Tribes of the Colville Reservation v. Teck Cominco Metals Ltd. (No. 24-5565), reversed a district court decision that found cultural resource damages claims impermissible under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). In doing so, the Ninth Circuit interpreted the law to ensure full compensation for direct and indirect natural resource damages consistent with CERCLA’s remedial purpose.

The Claim: Damages to Natural Resources with Cultural Uses

The case involves contamination of the Upper Columbia River from a smelting operation north of the US-Canadian border. The Confederated Tribes of the Colville Reservation (Tribes), acting as trustee for natural resources, brought claims under CERCLA for, among other things, natural resource damages.¹ The Tribes’ claim interim lost use of natural resources relating to their cultural uses of the river and its resources. The district court ruled against the Tribes, holding that CERCLA does not provide for “cultural resources” damages claims.

The Decision: Cultural Uses of Natural Resources are Compensable 

On appeal, the Tribes clarified they were not seeking damages for injury to “cultural resources” in the abstract. Instead, they seek compensation for lost cultural uses of natural resources—including fishing, gathering, and related activities—impaired by contamination of the river. The Ninth Circuit agreed, recognizing that CERCLA’s broad remedial purpose encompasses disruption of “any human uses” of natural resources, including those with cultural significance, so long as damages are reliably calculated and there is no double counting. The decision revives the Tribes’ claims and establishes circuit precedent for natural resource trustees to seek compensation for lost uses with a cultural dimension.

The Ninth Circuit focused on CERCLA’s broad language and remedial purpose. It noted that “[n]othing in the statute or in the caselaw suggests that interim lost uses of injured natural resources which have a cultural component … should be excluded as a matter of law from lost use damages authorized by CERCLA.”²

It also emphasized the human consequences of damaged natural resources. The court underscored that CERCLA was designed to “repair the harm to natural resources that occurred while the contamination was not yet contained, including the disruption of any human uses of the natural resources.”³ It continued: “It is clear beyond doubt that Congress aimed at providing full recovery of any damages to those persons harmed by the loss of natural resources. To do that, damages occasioned by lost human activities must be considered.”⁴

In reaching this conclusion, the Ninth Circuit aligned itself with the DC Circuit, which already recognized that CERCLA authorizes lost use claims based on “reliably calculated” values that “reflect utility derived by humans from a resource.”⁵

The Takeaways: Potential to Reshape How Parties Evaluate Natural Resource Damages Claims 

The Ninth Circuit’s decision confirms that natural resource damages claims can include human uses:

Tribal Claims

Tribes, when acting as trustees, may frame damages claims in terms of lost cultural uses of natural resources rather than loss of cultural resources as an independent claim. For example, they may frame claims based on the loss of access to salmon runs for subsistence, medicinal plants, or ceremonial water sources.

State and Federal Trustee Claims

State and federal trustees may bring claims for lost recreational uses when contamination limits swimming, boating, or camping or for impacts to subsistence communities under their jurisdiction such as those that are relatively common in Alaska and rural regions. 

Industry Implication

For potentially responsible parties (PRPs), the decision implicates risk assessments. The possibility for natural resource damages claims to encompass cultural, recreational, and subsistence losses can introduce greater complexity into quantification of losses. Companies may need to prepare for more and broader claims, potentially driving higher settlement demands and extended litigation. Project sponsors should carefully consider how to address losses of cultural uses, as well as commercial uses, of natural resources when drafting environmental analyses in support of permitting and site cleanup documents. 

In short, the Ninth Circuit’s decision in Colville Tribes v. Teck Cominco further defines the scope of natural resource damages available under CERCLA. In ruling that human uses of injured natural resources—including those with cultural, ceremonial, or subsistence components—are recoverable, the Court strengthened trustees’ ability to seek meaningful compensation for the communities they represent. As a result, PRPs should continue to account for comprehensive natural resource damages claims under CERCLA.