Yakama Nation's $300K Superfund Settlement Wins Approval

Joyce Hanson
In The News

Law360 (December 14, 2022, 5:54 PM EST) -- A federal judge has approved a nearly $300,000 settlement between the Yakama Nation and Yakima, Washington, over tribal work done to remove hazardous waste from a former city landfill, saying the city must pay all future costs incurred by the cleanup.  (Listen to article)

Chief U.S. District Judge Stanley A. Bastian entered judgment Tuesday against the city of Yakima and in favor of the Confederated Tribes and Bands of the Yakama Nation following the city's recent filing of a settlement offer in the Nation's suit brought under the federal Comprehensive Environmental Response, Compensation and Liability Act, also known as the Superfund law.

"Defendant City of Yakima shall pay to plaintiff Confederated Tribes and Bands of the Yakama Nation the amount of $295,000, plus prejudgment interest, in settlement of ... the Yakama Nation's claimed response costs, attorney fees, and costs through Nov. 1," Judge Bastian wrote.

The judge's two-page order and judgment also declared that beginning Nov. 2 the city became liable for future response costs incurred by the Yakama Nation at the Interstate 82 Exit 33A Yakima City Landfill Site "that are not inconsistent with the National Contingency Plan."

The Yakama Nation applauded Judge Bastian's decision in a Tuesday statement from its tribal council.

"The city's old landfill has been seeping toxins and contaminants into the soil and groundwater for decades," Yakama Chairman Gerald Lewis said. "Today's order ensures that Yakama Nation biologists and experts will have a role in the oversight of cleanup for the protection of our treaty-reserved resources."

Lewis added that the Yakama Nation now hopes to move forward on the cleanup "in a more cooperative and respectful relationship" with the city as natural resources in the area around the landfill are restored.

The city of Yakima did not respond immediately Wednesday to a request for comment.

On Nov. 30, the city offered to pay nearly $300,000 to reimburse the Yakama Nation for its work cleaning up the former city landfill in an effort to end the lawsuit over the project.

The proposed payment will cover expenses the Yakama Nation incurred while cleaning up the former municipal landfill the city operated in the 1960s, and puts the city on the hook for any future expenses at the property, according to the offer of judgment.

The Yakama Nation sued the city in 2020 after it helped clean up the riverfront landfill site that sits a couple of miles upstream from the tribe's reservation. The tribe said it cost about $134,000 to deal with contamination on the property between 2017 and 2021.

Yakima's settlement offer accounted for attorney fees and costs that the tribe has incurred through Nov. 1, the city told the court. In addition to agreeing to cover future costs, Yakima reserved its right to appeal in the settlement offer and did not admit fault in the dispute.

In August, Judge Bastian found the tribe's oversight of the site cleanup qualified as a removal under the federal Superfund law, even though the judge didn't immediately find that the expenses complied with the National Contingency Plan, allowing the case to continue.

Judge Bastian in July also found the tribe had standing to sue because it had shown that the cleanup costs it took on were related to the city's prior use of the site as a landfill. Yakima had argued the tribe hadn't established an interest in the property's cleanup.

Environmental hazards were discovered on the site in 1996 during the construction of an off-ramp for Interstate 82. After two decades of testing, state environmental officials ultimately found the property was leaching hazardous materials and metals into the nearby groundwater. The city of Yakima used the site as a landfill between 1963 and 1970, according to case documents.

The former landfill site is the historic location of a former Yakama tribe village. The property sits alongside the Yakima River, which is recognized as a usual and accustomed fishing resource for the Yakama tribe under an 1855 treaty.

The Yakama Nation is represented in-house by Shona Voelckers and Anthony Aronica, and by David F. Askman and Michael M. Frandina of the Askman Law Firm LLC and Thomas Zeilman of the Law Offices of Thomas Zeilman.

The city of Yakima is represented by Kurt B. Peterson, Spencer N. Gheen and Aaron P. Gilligan of PKG Law PS.

The case is Confederated Tribes and Bands of the Yakama Nation v. City of Yakima et al., case number 1:20-cv-03156, in the U.S. District Court for the Eastern District of Washington.

--Additional reporting by Nate Beck and Greg Lamm. Editing by Ellen Johnson.