Bush brief opposes review of Colville pollution case

Monday, November 26, 2007  

The Bush administration is urging the U.S. Supreme Court to stay out of an environmental dispute between a Canadian company and members of the Colville Confederated Tribes.

Joseph A. Pakootas, a former tribal chairman, and Donald R. Michel, a former council member, sued Teck Cominco in U.S. court in July 2004. They blamed the company's mine in British Columbia for polluting the Columbia River and the Colville Reservation in Washington.

According to the Environmental Protection Agency, Teck Cominco has dumped million tons of mine waste into a river just across the U.S. border, causing a threat to fish and humans on the reservation. Elevated levels of arsenic, cadmium, copper, lead, mercury, and zinc were found in Lake Roosevelt.

The findings prompted the EPA to order Teck Cominco to pay for the costs of cleaning up the Columbia River. The company refused, saying it wasn't under U.S. jurisdiction.

But the 9th Circuit Court of Appeals said Teck Cominco can be held liable for the pollution. The Comprehensive Environmental Response, Compensation, and Liability Act -- also known as the Superfund law -- applies to the company "even though the original source of the hazardous substances is located in a foreign country," the court said in a July 2006 ruling.

After losing a request for a rehearing, the company asked the Supreme Court to intervene. The justices, however, kept the case on hold for more than six months in order to obtain the views of the Bush administration.

The Department of Justice finally responded in a brief last week. Government attorneys said the dispute over the Superfund law is no longer an issue because the EPA has withdrawn the cleanup order as part of a settlement with Teck Cominco.

"Now that EPA has withdrawn that order, respondents' citizen-suit claims -- the only claims considered by the lower courts -- are moot," Solicitor Paul D. Clement wrote in the 26-page brief. The respondents are Pakootas and Michel of the Colville Tribes.

The brief also says the 9th Circuit ruling, though it was the first of its kind, doesn't pose a major national issue worthy of Supreme Court review. The Teck Cominco case is the first in the 27-year history of the Superfund law to address pollution by a foreign company.

"The fact that the comity question in this case is apparently arising now for the first time, notwithstanding the decades-old potential for disputes concerning cross-border pollution, strongly suggests that it lacks the recurring importance that petitioner attributes to it," Clement wrote.

In addition to the settlement, the brief points to negotiations between the U.S., Canada and Teck Cominco as a reason to stay out of the dispute. Resolving the dispute through "diplomatic channels" is preferable to court action, government attorneys said.

At the same time, the brief said the pollution alleged by the Colville tribal members is unquestionably linked to Teck Cominco. "Petitioner's conduct could arguably be analogized in some respects to firing a gun across the border, because it was inevitable that the river would carry the pollution directly into the United States," it stated. "Moreover, the slag at the bottom and on the beaches of the Columbia River is clearly identifiable and directly attributable to petitioner’s actions."

The Colville Tribes have been pressuring the EPA since the Clinton administration to take action on the pollution. More recently, tribal leaders hired the lobbying firm of former Interior deputy secretary J. Steven Griles to address "cleanup of the Upper Columbia River," according to documents filed in the Senate.

Griles, who used to lobby for the mining industry, pleaded guilty in March to lying to the Senate Indian Affairs Committee about his relationship with a convicted tribal lobbyist. He is currently serving a 10-month sentence in a federal prison in Virginia.

According to Senate documents, the tribe paid Griles and his firm $20,000 in 2005 and another $40,000 in 2006 on the Columbia River issue. The tribe ended its relationship with the firm at the end of 2006 and in early 2007, Griles ended his lobbying business.

The Colvilles have since switched to the firm of Drinker, Biddle & Reath, whose lobbyists include Paul Moorehead, a former Senate Indian Affairs Committee senior staffer. The firm is representing the tribe on "Lake Roosevelt funding," according to Senate documents. The tribe has another Washington firm to lobby on other Indian issues.

Relevant Documents:
DOJ Brief | Other Briefs | Docket Sheet: No. 06-1188

9th Circuit Decision:
Pakootas v. Teck Cominco (July 3, 2006)

Relevant Links:
Colville Confederated Tribes - http://www.colvilletribes.com
Teck Cominco - http://www.teckcominco.com
NARF-NCAI Tribal Supreme Court Project - http://www.narf.org/sct/index.html
SCOTUS Blog - http://www.scotusblog.com