A Question of Ownership: Governmental Liability under CERCLA in U.S. v. Newmont USA Ltd.

Former staff member Charles Thomas wrote this comment appearing in JNREL Vol. 22 No. 2. This abstract was written by Addison Schreck.

In US v. Newmont the US District Court for the Eastern District of Washington created a circuit split on what criteria is required to determine ownership under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"). "A Question of Ownership: Governmental Liability under CERCLA in US v. Newmont USA Ltd." follows the court as it navigates the tricky determination of ownership under CERCLA.

Citing precedent in the Ninth Circuit, the court recognizes that though the government's fee simple interest in the facility makes them it's possible owner, additional indicia of ownership to legal title must be present in order to assign ownership and its liabilities under CERCLA. In analyzing the ownership of the subject facility, an open-pit uranium mine located on the Spokane Native American Reservation in Washington, the court categorizes the property interests allotted by the Dawes Act as well as the Indian Mineral Leasing Act as further indicia of ownership. Also cited by the court as evidence of CERCLA ownership was the government's dominion over lease agreements regarding the property and decisions which it made with regard to them despite the dissent of the Spokane Indian government. Congress' continued ability to extinguish the Indian title to the property also weighed heavily in the court's decision that the United States qualified for ownership under CERCLA and would therefore be liable for the damages.

The court made a similar decision with regard to a second parcel of land, with a more complex chain of custody, including a somewhat incomplete transfer to a private citizen by the name of Edward Boyd. While the fee simple to the land lies with Boyd's descendants the court stipulates that there are circumstances, as here, where a party aside from the fee simple owner may be considered the "owner" within the bounds of CERCLA.

US v. Newmont joins numerous other decisions assigning liability for environmental damages to the United States, these decisions are indicative of the waiver of sovereign immunity contained in CERCLA. The United States is currently the largest property owner in the country and the liability stemming from environmental incidents promises to be an important factor in their future land use decisions.