Nevada Indian tribe wants BP subsidiary to defend pollution allegations in tribal court

A multinational oil company worth more than $150 billion could be forced into a rural Nevada tribal courtroom to defend itself against pollution-related claims.

The Yerington Paiute tribe is suing Atlantic Richfield Corp., a subsidiary of oil giant BP, in tribal court over alleged damage to tribal property and threats to members’ health.

Atlantic Richfield says tribal court isn’t an appropriate venue for the case and wants it dismissed.

Tribal officials allege water polluted with radioactive material, arsenic and other contaminants from the former Anaconda copper mine are devaluing the tribe’s property and pose a threat to members’ health.

“Let’s have a trial about whether or not the water is contaminated under this reservation,” said Austin Tighe, the tribe’s attorney.

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Central to the tribe’s claims is the Wabuska drain, an agricultural ditch that crosses 1.7 miles of reservation property on its way from the mine site to the Walker River.

“The Wabuska drain runs from the site and has carried and continues to carry toxic wastewater … right through the reservation,” Tighe said.

In 2013, BP and Atlantic Richfield reached a $19.5 million settlement with non-Indian neighbors of the polluted site, a settlement that included medical monitoring.

“Non-Indians were paid for the very same conduct that I’m alleging, they just don’t want to pay for the claims of the tribe,” Tighe said.

The tribe filed the suit August 18. Thursday was the first time attorneys addressed it in the tribal courtroom before Judge Sandra Pickens.

During the appearance, lawyers for Atlantic Richfield asked Pickens to dismiss the case in large part due to the fact the mining operation itself isn’t on the tribe’s reservation.

Attorney Kenzo Kawanabe said allowing tribal court to adjudicate a matter that originated off the reservation would be an unprecedented expansion of tribal authority and a threat even to companies operating hundreds of miles away from tribal land.

“Think about that, it would be a seismic change in federal Indian law,” Kawanabe said. “The tribe could also enact and enforce laws concerning off-reservation mining.”

Although the case is new to tribal court, efforts to measure and contain pollution from the mine are decades old.

Anaconda Co. bought the mine in 1951 and merged with an Atlantic Richfield subsidiary in 1977 before closing the mine in 1978.

Local businessman Don Tibbals bought the property along with a former employee housing area known as Weed Heights.

Tibbals leased portions of the mine and conducted some operations before selling the entire property, except for Weed Heights, to Arimetco Inc. in 1989. Arimetco went bankrupt in 2000 and abandoned the site, leaving the Nevada Department of Environmental Protection to manage the aftermath.

When BP acquired Atlantic Richfield in 1999, it also acquired liability for what Anaconda left behind, some 100 tons of uranium and other contaminants in the soil and water.

“They own the legal responsibility for running that contaminated water through that drain,” Tighe said. “They have been running toxic sludge though that thing forever, on our property.”

The tribe also alleges the company is responsible for contaminated dirt used on construction sites for members’ houses in Yerington.

Kawanabe argued the pollution isn’t on the reservation, although previously Atlantic Richfield agreed to provide bottled water to the tribe, an arrangement that remains intact.

“The mine-related impacts of groundwater do not extend to the reservation; even the groundwater plume the tribe complains of does not extend to the southernmost reach of the reservation,” Kawanabe said.

Kawanabe argued the tribe’s complaints should go to a federal judge who would have jurisdiction under the Comprehensive Environmental Response, Compensation and Liability Act, a federal law known as Superfund.

“The tribe is really claiming injury to its natural resources … That is a CERCLA claim,” Kawanabe said. “Suits alleging CERCLA activities can only be heard in federal court.”

The mine qualifies as a Superfund site under Environmental Protection Agency rules, although state officials have resisted such a designation.

In 2016, after years of resistance, Gov. Brian Sandoval, a Republican, accepted a designation. However, after meeting with EPA Administrator Scott Pruitt, Sandoval reversed course and accepted a deferral agreement that averted a Superfund listing in favor of state oversight.

In addition to the tribal court case, Atlantic Richfield is seeking an injunction in federal court that would block the tribal court from hearing the case.

There is no timeline for a decision by the tribal court.