Defining the scope of CERCLA natural resources damages is a rare occurrence in the Ninth Circuit, which is what is interesting about the recent decision in the case of Confederated Tribes of the Colville Reservation v. Teck Cominco Metals Ltd., Case No. 24-5565 (9th Cir. Sept. 3, 2025) ("Teck Cominco"). Looking to the D.C. Circuit, the Ninth Circuit in Teck Cominco holds "that CERCLA authorizes damages for lost uses of injured natural resources in cases where the lost uses have a cultural dimension." It is the last two words in the holding—"cultural dimension"—which is where the Ninth Circuit's scope defining takes place.
What You Need to Know:
- Lost use of injured natural resources are cognizable claims for CERCLA NRD damages in the Ninth Circuit
- "Cultural dimensions" to NRD damages do not render those damages unavailable by CERCLA
The decision in Teck Cominco reverses a summary judgment decision by a Washington federal district court that found natural resources damages with a "cultural dimension" were unavailable as a form of CERCLA recovery. The district court found "cultural resource damages" unavailable under CERCLA as natural resources damages. The Ninth Circuit was clear in rejecting the district court's characterization of the claims as "cultural resource damages," opting instead to characterize the claims as resource damages with a "cultural dimension."
The Ninth Circuit found support for its characterization in the D.C. Circuit decision of State of Ohio v. U.S. Dept. of the Interior, 880 F.2d 432 (D.C. Cir. 1989) ("State of Ohio"). Remarkably, the district court acknowledged the conflict in its summary judgment holding and the holding in State of Ohio but granted summary judgment regardless. In State of Ohio, the D.C. Circuit held natural resource damages with a "cultural component" were cognizable.
Harmonizing the law in the Ninth Circuit with the law in the D.C. Circuit clarifies the scope of CERCLA natural resource damages. Given the rarity of such issues being presented to the Ninth Circuit, it is likely that the Teck Cominco precedent will stand as CERCLA precedent in the Ninth Circuit for decades to come.
