Federal appeals court rules for tribes over Teck

In a legal victory for the Colville Tribes against international mining giant Teck Metals Ltd., the Ninth Circuit Court of Appeals Friday affirmed lower court rulings holding Teck responsible for cleaning up its releases of hazardous substances in the upper Columbia River.

“The Colville Tribes is very pleased that the Ninth Circuit agrees that Teck has polluted our river for decades and that the company is responsible for the costs of cleanup,” Colville Business Council Chairman Rodney Cawston said Friday in a news release. “This has been a long and very difficult road for our Tribes, but we have never wavered in our efforts to force Teck to do the right thing.”

Teck had contested its liability for its release of nearly 10 million tons of toxic slag, for nearly a century, from its Trail, BC smelter. Teck had claimed that U.S. courts lack jurisdiction over the company, but the appellate court found it “inconceivable” that Teck did not know its waste was aimed at Washington when it discharged waste directly to the Columbia River mere miles upstream of the international border.

The Tribes also prevailed in its effort to establish that Teck has “joint and several” liability for damages caused by its waste, meaning Teck will be responsible for all damages regardless of whether others may have also contributed to the harm. The Ninth Circuit agreed that Teck failed to meet its burden to avoid joint and several liability.

Finally, the court affirmed the Tribes’ recovery of more than $8.5 million in scientific investigative costs, attorney’s fees incurred for assessing the site and proving Teck’s liability, and prejudgment interest. The appellate court’s ruling today is an unequivocal victory for the Tribes on all disputed issues.

The rulings are the result of more than a decade of determined litigation by the Tribes, who were joined by the state of Washington as co-plaintiffs in 2004. Both the Tribes and the state argued that Teck should be found liable under the Comprehensive Environmental Response, Cleanup, and Liability Act (“CERCLA”) for its releases of slag and effluent into the upper Columbia River for almost 100 years.

“This is a unique case, not only because a Canadian mining company has been found liable under U.S. law, but because an Indian Tribe and a state have joined forces to protect a shared treasured resource — the Columbia River,” Cawston said. “Today’s ruling means that the polluter, not U.S. taxpayers, would pay the cost of remedial action.”

Teck now has 90 days to petition the U.S. Supreme Court for a “writ of certiorari,” asking the highest Court to hear its appeal of the Ninth Circuit rulings.