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Industries Fight Yakama Nation's Demand
to Clean Up More Fish Habitat
by Karina Brown
Courthouse News, April 13, 2018
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Industries Fight Yakama Nation's Demand
by Karina Brown
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PORTLAND, Ore. -- Lawyers for oil, gas and steel companies told a judge Friday that they shouldn't have to pay the Yakama Nation for its efforts to clean up pollution that has migrated beyond the bounds of a federally recognized Superfund site where the Willamette River winds through the center of the city.
A 10-mile stretch of the Willamette River north of downtown Portland was designated by the Environmental Protection Agency as a Superfund site under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) in 2000, triggering the ability of the government to get the industrial companies that dumped chemicals and heavy metals into the river over the last century to cover the cleanup effort.
More than 150 companies and public entities are listed in the Superfund litigation as potentially responsible parties, including Exxon Mobil Corp., Air Liquide America Corp., Bayer CropScience, BP West Coast Products, Schnitzer Steel Industries and Union Pacific Railroad.
In the 17 years since the Superfund listing, cleanup has barely begun, with the parties negotiating the scope of the damage and their potential liability.
But 17 years later, the Yakama Nation claimed the government and various industries weren't doing enough.
The Yakama, whose fishermen have treaty rights to catch salmon, steelhead and lamprey eel, sued in 2017, claiming the pollution had also made its way into the nearby Willamette Channel and the Lower Columbia River and had fouled fish habitat there.
The numbers of endangered fish in the Columbia and Willamette have dipped to historic lows, calling into question established norms regarding both the recreational and commercial catch.
On Friday, lawyers for the industrial companies argued that U.S. Magistrate Judge Paul Papak should dismiss the case, claiming the Yakama Nation lacked standing to file its suit.
John Ashworth, lawyer for BNSF Railway, questioned why the tribe, which inhabits a 2,186 square mile reservation in central Washington, would concern itself with pollution in the Willamette River.
"They don't say in the complaint why they belong here," Ashworth told the judge. "If what they're claiming is off-reservation violation under CERCLA, that should be in the complaint and it isn't."
But under agreements resulting from the landmark lawsuit U.S. v. Oregon, the Yakama Nation acts as a co-manager of endangered salmon and steelhead in the Columbia and Willamette Rivers.
Ashworth also argued that the Yakama had not shown that they were harmed by the pollution, or that his client had done anything harmful.
"There's no plausible connection between what defendants have done and any resulting injury," Ashworth said.
David Askman, lawyer for the Yakama, said it was well established that Willamette River water and the pollutants within it flow directly into the Willamette Channel and into the Lower Columbia River. And degradation of regional fish habitat caused by long-standing industrial pollution counted under the law as a vital natural resource that the Yakama are entitled to protect.
"Salmon, steelhead, lamprey -- if those are not natural resources, I don't know what are," Askman said.
Papak said he would take the arguments under advisement.
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