* Executive Editor, Boston College Environmental Affairs Law Review, 2000–01.
1 See Fredrick R. Anderson, Natural Resource Damages, Superfund, and the Courts, 16 B.C. Envtl. Aff. L. Rev. 405, 406 (1989).
2 42 U.S.C. §§ 9601–9675 (1994).
3 See 42 U.S.C. § 9607(f); Anderson, supra note 1, at 406.
4 See Barry Breen, Citizen Suits for Natural Resource Damages: Closing a Gap in Federal Environmental Law, 24 Wake Forest L. Rev. 851, 853 (1989).
5 See Anthony R. Chase, Remedying CERCLA’s Natural Resource Damages Provision: Incorporation of the Public Trust Doctrine Into Natural Resource Damage Actions, 11 Va. Envtl. L.J. 353, 357 (1992). The taxpayers would either literally pay the cost of restoration, or would figuratively “pay” by the result of no action taken to restore the damaged natural resources. See id.
6 See Zygmunt J.B. Plater et al., Environmental Law and Policy: Nature, Law and Society 60 (2d ed. 1998) [hereinafter Plater, Environmental Law].
7 See id. at 57–58, 60.
8 Chase, supra note 5, at 356 (quoting Prince William Sound and Gulf of Alaska; Restoration Work Plan and Program, 55 Fed. Reg. 48,160, 48,161 (1990)).
9 See id. The author explains that additional injuries to natural resources can be caused by the problem of biomagnification. See id. at 356 n.22. For example, PCBs and DDT are chemicals that do not easily deteriorate, and their hazardous effects are magnified by transmittal up the food chain. See id. They become concentrated in higher organisms, such as birds and marine mammals, at levels as high as a million times greater than normal concentration in water or marine sediments. See id. Anthropocentric clean-up standards may not be good enough to relieve problems caused by this phenomenon. See id. at 356.
10 See Chase, supra note 5, at 356.
11 Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. §§ 1251–1387 (1994).
12 Oil Pollution, Liability and Compensation Act, 33 U.S.C. §§ 2701–2761 (1994).
13 Other statutes such as the Trans-Alaska Pipeline Authorization Act and the Marine Protection Research and Sanctuaries Act amendments of 1988 provide for governmental recovery of natural resource damages in varying degrees. See Anderson, supra note 1, at 406 n.1; Breen, supra note 4, at 855–56.
14 See Kevin R. Murray et al., Natural Resource Damage Trustees: Whose Side Are They Really On?, 5 Envtl. Law. 407, 413 (Feb. 1999).
15 Often the trustees are Department of Interior (Interior) under CERCLA, and the Commerce Department’s National Oceanic and Atmospheric Administration (NOAA) under OPA. See id. at 412, 417–18.
16 See id. at 407, 413.
17 See Gerald F. George, Litigation of Claims for Natural Resource Damages, SD88 A.L.I.-A.B.A. 631, 633 (1999).
18 See generally Murray et al., supra note 14.
19 See Plater, Environmental Law, supra note 6, at 58.
20 See Zygmunt J.B. Plater, Environmental Law and Three Economies: Navigating a Sprawling Field of Study, Practice, and Societal Governance in Which Everything is Connected to Everything Else, 23 Harv. Envtl. L. Rev. 359, 366 (1999) [hereinafter Plater, Three Economies].
21 See Plater, Environmental Law, supra note 6, at 58; Plater, Three Economies, supra note 20, at 367.
22 See Plater, Three Economies, supra note 20, at 367–69.
23 See id. at 373.
24 See id. at 367–74.
25 Plater, Environmental Law, supra note 6, at 58; see also Plater, Three Economies, supra note 20, at 370.
26 See Plater, Three Economies, supra note 20, at 370.
27 See id. at 370, 373.
28 See id. at 368.
29 See id. at 369.
30 Id. at 370.
31 Plater, Environmental Law, supra note 6, at 59. Of course, harm to a resource system will cause prosperity to some enterprise, but the idea of protecting natural resources stems from concern for society as a whole. See id.
32 See 42 U.S.C. § 9607(f) (1994); 33 U.S.C. § 1321 (1994); 33 U.S.C. § 2702 (1994); see also Plater, Environmental Law, supra note 6, at 57–59.
33 See Chase, supra note 5, at 358.
34 See 42 U.S.C. § 9607.
35 See id. § 9607(f).
36 See id. The language is mandatory: the President and Governor “shall designate” officials to act as trustees, and those officials “shall assess damages” to natural resources. See id. (emphasis added).
37 42 U.S.C. § 9601(16).
38 See Craig R. O’Connor, Natural Resource Damages Under the Comprehensive Environmental Response, Compensation, and Liability Act, and the Oil Pollution Act, SD67 ALI-ABA 145, 150–51 (Feb. 1999) (citing Ohio v. United States Dep’t of Interior, 880 F.2d 432, 460 (D.C. Cir. 1989)).
39 See id.
40 See id. at 151 (citing Artesian Water Co. v. New Castle County, 851 F.2d 643, 650 (3d Cir. 1988)).
41 See id. (citing State of Idaho v. S. Refrigerated Transp., No. 88–1279, slip op. at 11–12 (D. Idaho Jan. 25, 1991)).
42 See id. (citing State of Ohio v. Georgeoff, 562 F. Supp. 1300, 1316 (N.D. Ohio 1983)).
43 See O’Connor, supra note 38, at 151 (citing Lutz v. Chromatex, 718 F. Supp. 413, 419 (M.D. Pa. 1989)).
44 See 33 U.S.C. § 2702(b)(2)(A) (1994); 33 U.S.C. § 1321(f)(4) (1994); 42 U.S.C. § 9607(f) (1994).
45 See 33 U.S.C. § 1321(f)(4).
46 E.g., 43 C.F.R. § 11.10 (1997); see Murray et al., supra note 14, at 415–16.
47 See 33 U.S.C. § 2702(b)(2)(A); Murray et al., supra note 14, at 416.
48 33 U.S.C. § 2706(b)(1); see 42 U.S.C. § 9607(f)(1).
49 See Murray et al., supra note 14, at 416–17.
50 See 33 U.S.C. § 2712(a)(2), (5) (1994); Murray et al., supra note 14 at 416. “The Oil Spill Liability Trust Fund is funded by an environmental tax on petroleum under the Internal Revenue Code as well as by provisions under various other statutes, including OPA, CWA, the Deepwater Port Act, the Outer Continental Shelf Lands Act Amendments, and the Trans-Alaska Pipeline Authorization Act.” Murray et al., supra note 14, at 417 n.30; see 26 U.S.C. § 9509(b) (1994); 33 U.S.C. § 1517(f) (1994); 33 U.S.C. §§ 1319(c), 1321 (1994); 33 U.S.C. §§ 2706(f), 2715 (1994); 43 U.S.C. § 1517(f) (1994); 43 U.S.C. §§ 1653, 1656 (1994 & Supp. II 1996); 43 U.S.C. § 1812 (1994).
51 See 26 U.S.C. § 9507(c)(1) (1994); 42 U.S.C. § 9611(b)(2) (1994); Murray et al., supra note 14, at 417 n.31.
52 See In re Acushnet River & New Bedford Harbor, 712 F. Supp. 1019, 1031–32 (D. Mass. 1989); Murray et al., supra note 14, at 428 n.89.
53 See generally In re Acushnet, 712 F. Supp. 1019.
54 See Chase, supra note 5, at 372.
55 See Murray et al., supra note 14, at 417.
56 See Chase, supra note 5, at 355, 365–71.
57 See Anderson, supra note 1, at 406 n.1 (citing Outer Continental Shelf Lands Act Amendment of 1978, 43 U.S.C. § 1813(a)(2)(C)–(D), (b)(3) (1982); Deepwater Port Act, 33 U.S.C. § 1517(i)(3) (1982); Trans-Alaska Pipeline Authorization Act, 43 U.S.C § 1653(a)(1), (c)(1) (1982)).
58 See Hughes v. Oklahoma, 441 U.S. 322, 337 (1979) (stating that states’ interest in conservation and protection of wild animals are legitimate local purposes similar to states’ interest in protecting the health and safety of their citizens).
59 These elements are: “(1) the release; (2) of a hazardous substance; (3) from a vessel or at a facility; (4) by a responsible party as defined in the statute.” George, supra note 17, at 641.
60 See id. at 641–42.
61 See id. at 641.
62 See id.
63 See In re Acushnet River & New Bedford Harbor: Proceedings re Alleged PCB Pollution, 722 F. Supp. 893, 897 (D. Mass. 1989).
64 United States v. Montrose Chem. Corp. of Cal., 788 F. Supp. 1485, 1490 (C.D. Cal. 1991); see also George, supra note 17, at 642.
65 See 42 U.S.C. § 9607(f) (1994) (stating the President and Governor “shall designate” officials to act as trustees, and those officials “shall assess damages” to natural resources).
66 See In re Acushnet River & New Bedford Harbor Proceedings re Alleged PCB Pollution, 712 F. Supp. 1019, 1031–32 (D. Mass. 1989).
67 See Murray et al., supra note 14, at 423.
68 See id. at 423–24.
69 Id. at 424.
70 See id. at 424–45.
71 See O’Connor, supra note 38, at 149–50 (citing Artesian Water Co. v. New Castle County, 851 F.2d 643, 649 (3d Cir. 1988); Lutz v. Chromatex, 718 F. Supp. 413, 419 (M.D. Pa. 1989)); see also James Peck, Measuring Justice for Nature: Issues in Evaluating and Litigating Natural Resource Damages, 14 J. Land Use & Envtl. L. 275, 297–98 (1999).
72 See O’Connor, supra note 38, at 149–50.
73 See Restatement (Second) of Trusts § 2 (1959).
74 See id.
75 See id.
76 Jesse Dukeminier & Stanley M. Johanson, Wills, Trusts, and Estates 435 (4th ed. 1990).
77 See Restatement (Second) of Trusts §§ 4, 17 (1959). “The phrase ‘terms of the trust’ means the manifestation of intention of the settlor with respect to the trust expressed in a manner which admits of its proof in judicial proceedings.” Id. § 4.
78 See id. § 2(h).
79 See id. § 99(e).
80 See id. § 74.
81 See id. § 23.
82 See id. § 2(b).
83 See Restatement (Second) of Trusts § 175 (1959).
84 See id. § 176.
85 See id. § 170.
86 See Dukeminier & Johanson, supra note 76, at 851.
87 See Restatement (Second) of Trusts § 170 cmt. h (1959); Dukeminier & Johanson, supra note 76, at 852.
88 See Restatement (Second) of Trusts § 216 (1959).
89 See id. § 172.
90 See id. § 179.
91 See id. § 172.
92 See id. § 179. This can be difficult for trustees to adhere to since they have legal title to the property.
93 See id. §§ 2 cmt. b, 171.
94 See Restatement (Second) of Trusts § 171 (1959).
95 See id. § 171; Dukeminier & Johanson, supra note 76, at 178.
96 See Restatement (Third) of Trusts § 171 (1992); Dukeminier & Johanson, supra note 76, at 178–79.
97 See 42 U.S.C. § 107(f) (1994); Restatement (Second) of Trusts § 3(1) (1959).
98 See 42 U.S.C. § 107(f); Restatement (Second) of Trusts § 3(3) (1959).
99 See Restatement (Second) of Trusts § 3(4) (1959). Did Congress intend to limit beneficiaries to citizens of the United States? To members of a local community that is affected by the damage to natural resources? Questions such as this are not answered by CERCLA. See 42 U.S.C. § 107(f).
100 See 42 U.S.C. § 107(f); Restatement (Second) of Trusts § 3(2) (1959).
101 See Chase, supra note 5, at 354, 379; Miriam Montesinos, Comment, It May Be Silly, But It’s an Answer: The Need to Accept Contingent Valuation Methodology in Natural Resource Damage Assessments, 26 Ecology L.Q. 48, 54 (1999).
102 See Plater, Environmental Law, supra note 6, at 995.
103 See id.
104 See id. at 995, 998.
105 See id. at 995.
106 263 N.E.2d 11 (1970).
107 See Plater, Environmental Law, supra note 6, at 998.
108 See id. at 998–99.
109 See id. at 998.
110 See Murray et al., supra note 14, at 422.
111 See id.
112 See George, supra note 17, at 633.
113 See Mary Christina Wood, Indian Land and the Promise of Native Sovereignty: The Trust Doctrine Revisited, 1994 Utah L. Rev. 1471, 1565 (1994).
114 See id. at 1474.
115 Id. at 1513–14 (citing Pyramid Lake Paiute Tribe of Indians v. Morton, 354 F. Supp. 252, 256–57 (D.D.C. 1972)).
116 Id. (citing Blue Legs v. United States Bureau of Indian Affairs, 867 F.2d 1094, 1096 (8th Cir. 1989)).
117 Id. (citing North Cheyenne Tribe v. Hodel, 12 Indian L. Rep. 3065, 3067–71 (D. Mont. 1985)).
118 Wood, supra note 113, at 1513–14 (citing Lane v. Pueblo of Santa Rosa, 249 U.S. 110, 113 (1919)).
119 Id. (citing White Mountain Apache Tribe v. United States, 11 Cl. Ct. 614, 681 (1987)).
120 See Kathleen M. O’Sullivan, Comment, What Would John Marshall Say? Does the Federal Trust Responsibility Protect Tribal Gambling Revenue?, 84 Geo. L.J. 123, 134 (1995).
121 See Wood, supra note 113, at 1512–13.
122 See id.
123 See id.
124 Id.
125 “As long as the special treatment can be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians, such legislative judgments will not be disturbed.” O’Sullivan, supra note 120, at 134 (citing Morton v. Mancari, 417 U.S. 535, 555 (1974)).
126 See id.
127 See id. at 134–35.
128 463 U.S. 206 (1983) [hereinafter Mitchell II].
129 Tribes can enforce the federal fiduciary duty and obtain equitable, declaratory, or mandamus relief in a federal district court pursuant to the Administrative Procedure Act (APA). Wood, supra note 113, at 1514–15. Before the enactment of the APA, “questions of sovereign immunity posed initial barriers to litigation and likely hampered tribes from fully employing the trust doctrine as a claim for relief against federal agency transgressions.” Id.
130 See Mitchell II, 463 U.S. at 224–27; see also O’Sullivan, supra note 120, at 135.
131 See O’Sullivan, supra note 120, at 134 n.84 (citing Mitchell v. United States, 445 U.S. 535 (1980)).
132 445 U.S. 535 (1980) [hereinafter Mitchell I].
133 Id. at 542.
134 See O’Sullivan, supra note 120, at 134 n.84.
135 See Mitchell II, 463 U.S. 206, 224 (1983).
136 See id. at 208–10; O’Sullivan, supra note 120, at 135.
137 See Mitchell II, 463 U.S. at 210; O’Sullivan, supra note 120, at 135.
138 See Mitchell II, 463 U.S. at 219–20; O’Sullivan, supra note 120, at 135 n.87.
139 See O’Sullivan, supra note 120, at 135, 138.
140 Id. at 135 (citing Mitchell II, 463 U.S. at 217). Critics of Mitchell II point out that the decision conflicts with the Court’s opinion in the 1975 case of Cort v. Ash, 422 U.S. 66 (1975). In Cort, the Court created a stringent, four-part test for implying a private cause of action from federal statutes that do not explicitly grant one. The factors of the test are: (1) whether the plaintiff is one of the class for whose especial benefit the statute was enacted; (2) whether there is any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one; (3) whether it is consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff; and (4) whether the cause of action is one traditionally relegated to state law, so that it would be inappropriate to infer a cause of action based solely on federal law. Id. at 78; O’Sullivan, supra note 120, at 138 n.109. Even though the Mitchell II Court did not apply the Cort v. Ash four-part test, the test created addresses the same fundamental issue—legislative intent to create a private right and remedy. O’Sullivan, supra note 120, at 138.
141 See Mitchell II, 463 U.S. at 224–25; O’Sullivan, supra note 120, at 135.
142 See Mitchell II, 463 U.S. 206, 222–24 (1983); O’Sullivan, supra note 120, at 135–36; Wood, supra note 113, at 1519–20.
143 See Mitchell II, 463 U.S. at 225. Indeed, the federal government did exercise elaborate control; until 1910, the federal government did not allow Indians the right to sell timber from reservation land, and the 1910 Act gave the Secretary of the Interior “the right to sell timber from the reservation land, the right to use the money from timber sales for the benefit of Indians, and the right to consent to sales by Indian allottees.” O’Sullivan, supra note 120, at 136 (citing Act of June 25, 1910, §§ 7–8, 36 Stat. 857 (codified as amended at 25 U.S.C. §§ 406, 407 (1994)).
144 O’Sullivan, supra note 120, at 135–36 (citing 25 U.S.C. § 406(a) (1994)).
145 Id. at 136.
146 Id.
147 See Mitchell II, 463 U.S. at 226; O’Sullivan, supra note 120, at 136. The Court contrasted these statutes and regulations with the “bare trust” created by the General Allotment Act. See Mitchell II, 463 U.S. at 224; O’Sullivan, supra note 120, at 136..
148 See Mitchell I, 445 U.S. 535, 538 (1980).
149 See Mitchell II, 463 U.S. 206, 217 n.16 (1983); O’Sullivan, supra note 120, at 137.
150 See Mitchell II, 463 U.S. at 226 (citing Restatement (Second) of Trusts §§ 205–212 (1959) for proposition that, at common law, trustee’s breach of fiduciary duty naturally leads to liability); O’Sullivan, supra note 120, at 137. The Court also seems to take into account the fact that many Quinaults lacked education, and were absentee owners, unaware of the exact physical location of their allotments. See Mitchell II, 463 U.S. at 227; O’Sullivan, supra note 120, at 137.
151 See O’Sullivan, supra note 120, at 137.
152 See id.
153 See id.
154 See 463 U.S. at 206.
155 2001 WL 173299 (D.C. Cir. 2001).
156 See John Gibeaut, Another Broken Trust, A.B.A. J., Sept. 1999, at 40–44.
157 See generally Norton, 2001 WL 173299.
158 See Murray et al., supra note 14, at 419 n.45.
159 See 42 U.S.C. § 9607(f) (1994) (emphasis added).
160 See id.
161 See id.
162 See In re Acushnet River & New Bedford Harbor Proceedings re Alleged PCB Pollution, 712 F. Supp. 1019 (D. Mass. 1989); Murray et al., supra note 14, at 428 n.89.
163 See generally Kennecott Utah Copper Corp. v. United States Dep’t of Interior, 88 F.3d 1191 (D.C. Cir. 1996); State of Ohio v. United States Dep’t of Interior, 880 F.2d 432 (D.C. Cir. 1989).
164 See Ohio, 880 F.2d at 441, 459.
165 See id. at 481.
166 Id. at 459.
167 See id.
168 Lost use value encompasses the human economic harm stemming from loss of natural resources, such as loss of timber or harvestable species of fish. See Plater, supra note 6, at 222–23; Anderson, supra note 1, at 407.
169 See State of Ohio v. United States Dep’t of Interior, 880 F.2d 432, 441, 459 (D.C. Cir. 1989).
170 See Kennecott Utah Copper Corp. v. United States Dep’t of Interior, 88 F.3d 1191, 1229 (D.C. Cir. 1996); Ohio 880 F.2d at 459.
171 42 U.S.C. § 9607(f)(1) (1994) (emphasis added).
172 88 F.3d 1191 (D.C. Cir. 1996).
173 See id. at 1199.
174 See id. at 1229.
175 See 43 C.F.R. § 11.81; Kennecott, 88 F.3d at 1229.
176 467 U.S. 837 (1984). Chevron set a precedent of great deference to administrative agency decision making. See id.
177 See Kennecott Utah Copper Corp. v. United States Dep’t of Interior, 88 F.3d 1191, 1229 (D.C. Cir. 1996).
178 See id. Interior uses “restoration” and “rehabilitation” as synonyms, defining them as “actions undertaken to return injured resources to their baseline condition.” 43 C.F.R. § 11.82(b)(1)(i). It defines “replacement” and “acquisition of the equivalent” as synonymous, meaning “the substitution for injured resources with resources that provide the same or substantially similar services.” 43 C.F.R. § 11.82(b)(1)(ii); see Kennecott, 88 F.3d at 1229.
179 See Kennecott, 88 F.3d at 1191.
180 628 F.2d 652 (1st Cir. 1980).
181 See id. at 676–77.
182 See id. at 656.
183 See id.
184 See id. at 670–74.
185 See id. at 674.
186 The court articulated factors that a reasonable and prudent trustee of the environment would consider in its steps to mitigate harm caused by pollution: technical feasibility, harmful side effects, compatibility with or duplication of such regeneration as is to be naturally expected, and the extent to which efforts beyond a certain point would become either redundant or disproportionately expensive. See Puerto Rico v. S.S. Zoe Colocotroni, 628 F.2d 657, 675 (1st Cir. 1980).
187 See id. at 675.
188 See id. at 676.
189 See id. The court applied the standard to reject a $7 million proposal to remove damaged trees and oil-impregnated sediments from a large area and replace them with clean sediment and container-grown trees, stating that no reasonable trustee of the environment would have pursued such a plan. See id. It next rejected a $5 million plan related to the replacement value of the living creatures destroyed or damaged by the oil spill as also being unreasonable. See id. at 676–77. Finally, it remanded the case to the District Court for further consideration, urging the parties to consider the option of alternative site restoration. See id. at 678.
190 See Puerto Rico, 628 F.2d at 678; Murray et al., supra note 14, at 433.
191 See Ohio v. United States Dep’t of Interior, 880 F.2d 432, 459 (D.C. Cir. 1989).
192 See Kennecott Utah Copper Corp. v. United States Dep’t of Interior, 88 F.3d 1191, 1229 (D.C. Cir. 1996); Puerto Rico, 628 F.2d at 675–76.
193 See 42 U.S.C. § 9607(f) (1994).
194 See id. Trustees, as part of the government, may often be under political pressure to maintain good favor with industry by seeking lost use damages instead of the more expensive restoration damages. See id.
195 See O’Connor, supra note 38, at 152–53.
196 See id.
197 See id.
198 See, e.g., Kennecott Utah Copper Corp. v. United States Dep’t of Interior, 88 F.3d 1191, 1230–31 (D.C. Cir. 1996); Puerto Rico v. S.S. Zoe Colocotroni, 628 F.2d 657, 673–74 (1st Cir. 1980).
199 See generally Kennecott, 88 F.3d 1191; Puerto Rico, 628 F.2d 652.
200 See Kennecott, 88 F.3d at 1229; Ohio v. United States Dep’t of Interior, 880 F.2d 432, 459 (D.C. Cir. 1989); Murray et al., supra note 14, at 424.
201 See Murray et al., supra note 14, at 427 n.83.
202 See id.
203 See id.
204 See id.
205 See Plater, Environmental Law, supra note 6, at 220.
206 See Murray et al., supra note 14, at 447.
207 See id.
208 See Exxon Valdez Oil Spill Trustee Council (visited Nov. 20, 1999) <http://www. oilspill.state.ak.us> [hereinafter Exxon Valdez].
209 See id.
210 See id.
211 See id.
212 See id.
213 See id. These costs include management of the annual work plan and habitat programs, scientific oversight of research, monitoring and restoration projects, agency coordination, and overall administrative costs including costs of keeping the public informed. See id.
214 See Murray et al., supra note 14, at 440 n.143.
215 See id.
216 712 F. Supp. 1019 (D. Mass. 1989).
217 See id. at 1022.
218 See id.
219 Id.
220 See id.
221 See id. at 1024. The Federation sought only the right to brief and argue several issues. It did not seek to participate in discovery, the examination of witnesses, or the taking or contesting of evidence. Id. at 1023.
222 See In re Acushnet River & New Bedford Harbor Proceedings re Alleged PCB Pollution, 712 F. Supp. 1019, 1024 (D. Mass. 1989).
223 See id. at 1024–25. The court also noted that the expertise of the Federation would help guide the court through the extremely complex matter before it. See id. at 1025.
224 See id. at 1026; see also 42 U.S.C. § 9613(f)(2) (1994).
225 See In re Acushnet, 712 F. Supp. at 1026.
226 Id. at 1027. Factors for the court to consider in deciding whether to approve a settlement include: a comparison of the strengths of plaintiffs’ case versus the amount of the settlement offer; the likely complexity, length, and expense of the litigation; the amount of opposition to the settlement among affected parties; the opinion of competent counsel; and, the stage of the proceedings and the amount of discovery already undertaken at the time of the settlement. See id. (quoting E.E.O.C. v. Hiram Walker & Sons, Inc., 768 F.2d 884, 889 (7th Cir. 1985)).
227 See id. at 1032–33. In 42 U.S.C. § 9622 (1994), section 9622(j)(2) provides:
An agreement under this section may contain a covenant not to sue under section 9607(a)(4)(C) of this title for damages to natural resources under the trusteeship of the United States resulting from the release or threatened release of hazardous substances that is the subject of the agreement, but only if the Federal natural resource trustee has agreed in writing to such covenant. The Federal natural resource trustee may agree to such covenant if the potentially responsible party agrees to undertake appropriate actions necessary to protect and restore the natural resources damaged by such release or threatened release of hazardous substances.
42 U.S.C. § 9622(j)(2); see In re Acushnet, 712 F. Supp. at 1032–33.
228 See In re Acushnet River & New Bedford Harbor Proceedings re Alleged PCB Pollution, 712 F. Supp. 1019, 1033 (D. Mass. 1989).
229 Id. at 1031.
230 See id. at 1031, 1032; Murray et al., supra note 14, at 428 n.89.
231 See In re Acushnet, 712 F. Supp. at 1032.
232 See id.
233 See id. at 1022–26.
234 O’Connor, supra note 38, at 149.
235 See id. (citing Ohio v. United States Dep’t of Interior, 880 F.2d 432, 455 (D.C. Cir. 1989)); Puerto Rico v. S.S. Zoe Colocotroni, 628 F.2d 657, 673–74 (1st Cir. 1980).
236 See 42 U.S.C. § 9607(f) (1994).
237 See O’Connor, supra note 38, at 149–50.
238 See Chase, supra note 5, at 354.
239 Wood, supra note 113, at 1565.
240 See id.
241 See, e.g., Kennecott Utah Copper Corp. v. United States Dep’t of Interior, 88 F.3d 1191, 1224, 1230–31 (D.C. Cir. 1996).
242 See Murray et al., supra note 14, at 466.
243 See Kennecott, 88 F.3d at 1229; Ohio, 880 F.2d at 459.
244 See Murray et al., supra note 14, at 433.
245 Id. at 433–34.
246 See id. at 427 n.83.
247 See id.
248 See Puerto Rico v. S.S. Zoe Colocotroni, 628 F.2d 652, 675–76 (1st Cir. 1980); Murray et al., supra note 14, at 427 n.83..
249 See Puerto Rico, 628 F.2d at 675.
250 See id.
251 See Plater, Environmental Law, supra note 6, at 220.
252 See Murray et al., supra note 14, at 447.
253 See Exxon Valdez, supra note 208.
254 See Murray et al., supra note 14, at 447–49.
255 See id. at 447–48. Projects included sockeye salmon and killer whale projects that were routinely required by Alaska harvest management programs and thus should have been funded by Alaska Department of Fish and Game. The Spill Trustee Council also funded a study examining the effects of oil exposure on embryonic development of pink salmon (not genetically identical to the pink salmon in Prince William Sound) in southeast Alaska, which is outside the spill area. Id. at 448.
256 See id.
257 See id. at 449. Former EPA Administrator Carol Browner announced in March 1997 that Exxon funds would be used to restore forested buffers in the Anacostia River watershed in Maryland, and in September 1997 that funds would be used to prevent pollution of the waters in and around New York City. See id.
258 See Puerto Rico v. S.S. Zoe Colocotroni, 628 F.2d 652, 675–76 (1st Cir. 1980).
259 See Murray et al., supra note 14, at 448–49.
260 See Puerto Rico, 628 F.2d at 675–76.
261 See Kennecott Utah Copper Corp. v. United States Dep’t of Interior, 88 F.3d 1191, 1229 (D.C. Cir. 1996); Puerto Rico, 628 F.2d at 675–76.
262 See Murray et al., supra note 14, at 449.
263 See Exxon Valdez, supra note 208.The Center is a fifty-five million dollar facility combining three main missions: providing public education about the marine environment, maintaining the best marine research facilities in the north Pacific, and offering animal rehabilitation for injured marine mammals and seabirds. See id.
264 42 U.S.C. § 9607(f) (1994).
265 See id.
266 Kennecott, 88 F.3d at 1229.
267 See Murray et al., supra note 14, at 426 (citing Superfund Reauthorization and Reform Legislation: Hearings on H.R. 2727 Before the Subcomm. on Water Resources and Env’t of the House Comm. on Transp. and Infrastructure, 104th Cong. 239, 239 (1998) (statement of Richard Stewart, Professor, New York University School of Law)).
268 See id. The Center serves as a tourist attraction that helps to boost the local economy, and as a center for research related to the oil spill. See Exxon Valdez, supra note 208. Both purposes seem to be a reasonable way to compensate the people of Alaska for their lost use of natural resources. See id.
269 See, e.g., Kennecott Utah Copper Corp. v. United States Dep’t of Interior, 88 F.3d 1191, 1229 (D.C. Cir. 1996); Ohio v. United States Dep’t of Interior, 880 F.2d 432, 459 (D.C. Cir. 1989); Puerto Rico v. S.S. Zoe Colocotroni, 628 F.2d 652, 675–76 (1st Cir. 1980).
270 See generally In re Acushnet River & New Bedford Harbor Proceedings re Alleged PCB Pollution, 712 F. Supp. 1019 (D. Mass. 1989); Puerto Rico, 628 F.2d at 652.
271 These hypothetical situations are only a step removed from actual cases. In the New Bedford Harbor case, Interior settled with defendant AVX for an amount later proven to be too low, and in the case of Canterra Trustee Council, the Trustee Council used recovered funds to help pay for other projects. See In re Acushnet, 712 F. Supp. at 1019; Murray et al., supra note 14, at 427 n.83.
272 See In re Acushnet, 712 F. Supp. at 1019.
273 See Restatement (Second) of Trusts § 2 cmt. b (1959). Common law trustees are subject to the highest fiduciary duty known at law. See id.
274 See, e.g., Kennecott Utah Copper Corp. v. United States Dep’t of Interior, 88 F.3d 1191, 1229 (D.C. Cir. 1996); Ohio v. United States Dep’t of Interior, 880 F.2d 432, 459 (D.C. Cir. 1989); Puerto Rico, 628 F.2d at 675–76.
275 See Wood, supra note 113, at 1505. The analogy makes even more sense today than it might have fifty years ago, because the modern role of federal protection is to shield Indian lands from environmental threats. See id. Thus, not only do the Indian and NRD trustees share a similar relationship of trust between agency and public, but they are now engaging in substantively similar work. See id.
276 See Mitchell II, 463 U.S. 206, 224 (1983).
277 Id. at 210. The respondents claimed that the government: (1) failed to obtain a fair market value for timber sold; (2) failed to manage timber on a sustained-yield basis; (3) failed to obtain any payment at all for some merchantable timber; (4) failed to develop a proper system of roads and easements for timber operations and exacted improper charges from allottees for maintenance of roads; (5) failed to pay any interest on certain funds from timber sales held by the funds; and (6) exacted excessive administrative fees from allottees. Id.
278 See id. at 226.
279 Id. at 224.
280 See id.; Wood, supra note 113, at 1518–19.
281 See Mitchell II, 463 U.S. at 225.
282 Mitchell II, 463 U.S. 206, 225 (1983).
283 Id. at 226.
284 See id. at 227.
285 See id.
286 See id.
287 See id. at 227–28. The Court recognized that once the natural resources such as timber on an allotment have been destroyed, it could take years for nature to restore them. See id.
288 See generally Mitchell II, 463 U.S. 206, 225 (1983).
289 See id. at 224–25.
290 See O’Connor, supra note 38, at 149–50.
291 See Wood, supra note 113, at 1478.
292 See id. at 1478–79.
293 See id.
294 See Mitchell II, 463 U.S. at 225.
295 See id.
296 See id.
297 See id. at 227.
298 See id. For example, many Americans feel that they have a stake in the wilderness and natural resources of Alaska. There is a general feeling that the treasures of Alaska belong to us collectively. Yet, many citizens simply cannot monitor the progress of the Spill Trustee Council in restoring the damaged natural resources after the Exxon Valdez spill. We must rely therefore on the Spill Trustee Council to fulfill its fiduciary duties.
299 See id.
300 See Mitchell II, 463 U.S. 206, 227 (1983).
301 See id.
302 See id.
303 See O’Sullivan, supra note 120, at 137.
304 See id.
305 See id.
306 422 U.S. 66 (1975). For factors of the Cort v. Ash test, see supra note 140.
307 See O’Sullivan, supra note 120, at 137–38.
308 See Mitchell II, 463 U.S. 206, 234 n.8 (1983).
309 See id.
310 See Murray et al., supra note 14, at 422. The authors state that Congress’s use of the common law terms “trust” and “trustee” appears to imply its intention to impose on NRD trustees the responsibilities of a trustee as established by common law. This idea is further emphasized by the legislative history in which a committee noted that the legislation’s purpose was to “preserve the public trust in the Nation’s natural resources.” Id.