Claims Over Superfund Tribal Land Deemed Late

     (CN) – Quapaw tribal members waited too long to accuse the U.S. government of failing to protect their land from becoming one of the “nation’s worst environmental disasters,” a federal judge found.
     Historically, the Quapaw “had grown a wide variety of crops on their lands,” according to the ruling. “They also had a large supply of timber, and grazing land for cattle.”
     The federal government began overseeing the leasing of Quapaw land in Oklahoma to lead and zinc mining activities in the late 1800s, but tribal members said the mining produced a by-product known as “chat” that is hazardous to the environment.
     Mining companies were allegedly allowed to “pile hundreds of millions of tons of toxic mining wastes on the land, creating toxic millponds, polluting Tar Creek and other surface and ground waters with lead, zinc and cadmium,” turning Picher, Okla., into “an abandoned worthless ghost town.”
     Nine successors to original land allotments made by the tribe in 1893 say chat accumulation contaminated tribal soil and ground water, and destroyed the land for agricultural use. Much of the productive farm and grazing land is now “a virtual moonscape that the [Environmental Protection Agency] has designated as the Tar Creek Superfund site, one of the nation’s worst environmental disasters,” according to the complaint.
     Judge Thomas Wheeler with the U.S. Court of Federal Claims concluded Tuesday, however, that the statute of limitations bars several claims.
     “Mining operations on plaintiffs’ land, and implicitly, the duty to monitor those operations, have long since ceased,” Wheeler wrote. “Plaintiffs do not, and cannot, allege that the government breached its fiduciary duty to manage the natural resources or supervise mining operations on their land during the six-year period preceding the filing of their suit.”
     The federal government argued that the Comprehensive Environmental Response, Compensation, and Liability Act pre-empted such claims, but “nowhere in plaintiffs’ fifth cause of action does the court discern any challenge to the EPA’s current remedial efforts,” Wheeler wrote.
     The plaintiffs also were not untimely in their claim for recovery of rents and other payments for leased town lots, according to the ruling.
     Uncle Sam’s argument that it has “insufficient knowledge” concerning the leases fails because it has access to an analysis performed between 2004 and 2010 “of files and documents made available by the Office of Historic Trust Accounting and other agencies to determine whether and to what extent the department of Interior met its fiduciary obligations to the Tribe and individual trust beneficiaries,” the court found.
     The tribal members were untimely, however, in their claims that the U.S. government failed to protect its tribal members, according to the ruling.
     Wheeler lastly concluded that the “alternative takings claim, alleging that they were deprived of their property interest in their legal claims,” is premature.
     The plaintiffs can reassert this claim later if it becomes “ripe for adjudication,” Wheeler found.

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