The Nez Perce Tribe, Confederated Tribes of the Umatilla Indian Reservation, Confederated Tribes of Warm Springs Reservation of Oregon, and Confederated Tribes and Bands of the Yakama Nation, along with the Native American Rights Fund (NARF), have filed an amicus brief in the case Pakootas v. Teck Cominco, Ltd. The brief was submitted to the U.S. Court of Appeals for the Ninth Circuit on December 12, 2024.

The tribes are urging the court to recognize a tribe's loss of culturally significant services derived from injured natural resources as recoverable damages under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). CERCLA allows governmental trustees—federal, state, and tribal—to recover damages from polluters for lost use and loss of services from natural resources through a Natural Resource Damage Assessment (NRDA).

Tom Murphy, a staff attorney at NARF, stated that "numerous Tribal Nations across the United States are or have been recognized as CERCLA Natural Resource Trustees and, given the damages they have suffered, this case is of great significance to them."

The brief seeks to reverse an order by the Eastern District of Washington which granted Teck Cominco's motion for partial summary judgment. This order deemed claims related to culturally significant service losses as beyond CERCLA's recovery scope. The brief argues that this decision incorrectly redefined service loss damages as “cultural resource damages” without proper analysis.

Melissa Kay from NARF emphasized that denying tribes recovery for injuries to natural resources prevents these resources from serving their traditional roles in tribal history and culture. She stated that "for many Native communities, natural resources are and have always been cultural resources."

Nez Perce Tribe Chairman Shannon Wheeler highlighted Congress’s 1986 Amendment to CERCLA which included tribes as trustees due to their unique losses from environmental contamination.

NARF is supporting the Columbia River Treaty Tribes who filed this amicus brief. These tribes hold treaty-reserved rights to harvest natural resources in the Columbia River Basin.

The issue concerns potential preclusion under CERCLA’s recovery mechanism of certain types of tribal service losses deemed “cultural.” Such exclusion would prevent affected tribes from being fully compensated for damage caused by long-standing pollution.