By Agueda Pacheco-Flores

The Seattle Times

A three-judge panel of the 9th U.S. Circuit Court of Appeals has upheld a lower court decision finding a Canadian company is liable for polluting the Upper Columbia River in a hard-fought lawsuit between the Confederated Tribes of the Colville Reservation and the largest lead and zinc mining company in the world.

In a 55-page opinion issued Sep. 14, federal appellate court judges Ronald M. Gould, Richard A. Paez, and Michael J. McShane upheld a district-court decision that U.S. federal courts do have jurisdiction to find Teck Resources Ltd. (formerly Teck Cominco Metals) liable for polluting the river for close to a century. The ruling upheld a lower court order for the company to reimburse the Colville tribe $8.25 million — $3.39 million the tribe paid to investigate the river’s pollution, plus $4.86 million in attorney fees and costs. The company must also pay $344,300 in prejudgment interest, bringing the total to nearly $8.6 million.

A separate lawsuit seeking damages from Teck for lost or damaged natural resources like Chinook salmon has not been scheduled. Any damages from that lawsuit would be used to pay to rehabilitate the river, after a full investigation into the extent and effects of the Upper Columbia River contamination, which is the next step, said Bob Warren, program manager for the toxic cleanup program at the Washington state Department of Ecology.

Warren said the damages and contamination have yet to be fully characterized.

The Colville Tribe had petitioned the Environment Protection Agency in 1999 to hold Teck responsible for contaminating the river that drains into Lake Roosevelt. The EPA ordered the company to assess the damages from the tons of industrial waste, known as slag, that had been dumped into the river since 1930.

The Upper Columbia River is a culturally significant resource to the Colville tribe. Its 2.8 million-acre reservation in Eastern Washington is bordered by more than 150 miles of the river where traditional foods, including Chinook salmon and rainbow trout, have been harvested for generations. The decision signals a move toward holding Teck Resources Limited accountable for polluting the river for nearly a century, said Colville Chairman Rodney Cawston.

“The reality of it is we’re still here, we’re not extinct, our people are still practicing their culture and it’s very important to see that those food resources and the environment are clean and safe for our people,” Cawston said.

According to court records , Teck, previously known as Teck Cominco Metals, claimed the EPA had no legal power in Canada, marking the start of a decades-long lawsuit with the Colville Tribe and the state of Washington against the mining company.

Eventually, Teck entered into an agreement with the EPA to clean some of the slag, but Andy Fitz, an attorney from the Attorney General’s Office representing the state of Washington, said it entered the agreement without admitting it was liable.

“There has been different tentacles to this case and then there’s a part of the case that hasn’t yet been litigated,” Fitz said.

In 2010, Teck removed about 9,100 tons of slag from Black Sand Beach in an agreement with the state’s Department of Ecology.

However, the 9th Circuit panel opinion agreed that the company is responsible for flushing an enormous volume of pollution into the river, including heavy metals. Estimates say upward of 363,000 tons of zinc; 29,000 tons of lead; 1,700 tons of cadmium; 270 tons of arsenic, and 200 tons of mercury were dumped by the company and made their way down the Upper Columbia River.

In the 14 years since the lawsuit was first filed, attorneys from both sides have filed hundreds of thousands of pages of documents, outlined in a court docket that includes nearly 2,400 separate entries, not including the appeal.

Teck attempted to dismiss the lawsuit, claiming it didn’t “expressly” aim its waste at Washington. The panel disagreed, citing internal company documents showing Teck leadership knew the powerful Columbia River was bound to push the slag downstream.

“It is inconceivable that Teck did not know that its waste was aimed at the state of Washington,” the opinion says. “Rivers are nature’s conveyor belts.”

Teck challenged the 2008 court judgment ordering it to pay a total of $8.25 million to cover the tribe’s attorney fees and the series of ecological studies the tribe had done on the Upper Columbia River. The appeals court asserted that Teck must pay back the Colville tribe.

The company reported profits of $1.2 billion in their second quarter report released this July.

“That doesn’t set well,” Cawston said. “Billions of dollars on profits off these resources and yet here we are.”

“The tribe south of Teck are the ones who are made to pay those high costs that impact our people, they impact our health, impact the habitat of our fish and wildlife, and impact having clean water and clean air,” Cawston said.

On Tuesday, Teck said in statement that it was disappointed with the panel’s decision and stressed the company had invested $85 million into investigating the potential risks in the Upper Columbia River.

“Results to date are encouraging, and the Upper Columbia River remains an important recreational destination, with excellent water quality and restrictions on fish consumption that compare favourably to other water bodies in Washington State,” the statement said.

Attorneys for the tribe worked closely with the state’s Attorney General’s Office, which coordinated and shared the oral argument in front of the 9th U.S. Circuit Court of Appeals panel.

Fitz said the state is prepared to go all the way to the U.S. Supreme Court if Teck decides to appeal.

Chairman Cawston accepts that the river will probably never return to its natural state and said the $8.25 million isn’t enough to address the toxic waste in the river, but hopes Teck will “do the right thing.”

“It’s going to take some time, whether that’s going to involve another lawsuit or whether Teck Cominco will just accept its responsibility and begin working to clean up the Upper Columbia,” he said. “I guess that’s just yet to be seen.”