This month, the United States Court of Appeals for the Ninth Circuit held in Confederated Tribes of the Colville Rsrv. v. Teck Cominco Metals Ltd, No. 24-5565, 2025 WL 2525853 (9th Cir. Sept. 3, 2025) that CERCLA permits recovery of natural resource damages with a cultural use component, effectively reversing the district court’s holding that cultural resource damages are not authorized under CERCLA.

This case runs in parallel to the Pakootas v. Teck Cominco Metals, Ltd. case, covered in this blog last year.  The instant action stems from Teck Cominco Metals Ltd.’s (“Teck”) discharge of slag from its lead-zinc smelter in British Columbia into the Upper Columbia River. Over the course of sixty-five years, Teck discharged nearly 10 million tons of slag into the Upper Columbia River. In 2004, members of the Confederated Tribes of the Colville Reservation (the “Confederated Tribes”) brought a citizen suit against Teck under CERCLA, which action was later joined by the State of Washington. The action was split into three phases to determine Teck’s responsibility for the contamination, its liability for response, and presently, Teck’s liability for natural resource damages.

The Confederated Tribes argued in this phase that they were entitled to natural resource damages based on injury to benthic organisms in river sediment and elevated mercury levels in fish, thereby resulting in a loss of public use of these resources. The Confederated Tribes separately sought natural resource damages for the interim loss of use of the injured natural resources stemming from the Confederated Tribes’ distinctive relationship with the river. Specifically, the Confederated Tribes claimed loss of: “(1) reduced tribal fishing trips due to state-issued advisories concerning unsafe mercury levels in fish; (2) the interim lost use of an uncontaminated river; and (3) the interim lost use of the injured natural resources for cultural purposes.” Teck argued that CERCLA does not permit recovery for cultural resource damages, and in February 2024 the District Court for the Eastern District of Washington agreed with Teck.

The United States Court of Appeals for the Ninth Circuit, however, found this ruling to be in error. Looking to the Congressional intent behind CERCLA’s regulations, the Court found the intent was to include consideration of both direct and indirect injury stemming from the discharge of hazardous substances, and this mandate expressly included consideration of “use value” in these calculations. The court noted that the plain language interpretation of the term “use value” does not preclude consideration of lost uses with a cultural component. It also found precedent from the D.C. Circuit persuasive in its holding that Congress intended CERCLA regulations to fully capture “all aspects of loss” and such consideration allows mere “existence values” to be considered in a damage assessment. Ultimately, the Ninth Circuit found that nothing in the statute or caselaw indicates that CERCLA does not permit recovery of natural resource damages with a cultural component, whether “because cultural perspectives inform the determination of the value of the interim lost use or because the injured natural resources have cultural uses. . . .” As such, the case was reversed and remanded to the district court for trial to determine whether the Confederated Tribes have incurred damages from the lost use of injured natural resources.

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