Court Decree Prevents Elem Indian Colony from ever suing the EPA for the $40,000,000 in illegal damage caused to cultural sites on the reservation.

In February 2012, the U.S. Dept of Justice and the EPA developed a Consent Decree to be signed by Elem, the Bradley Mining Company, and the United States.  In many situations where the EPA must clean up toxic waste created by a private company, that company is asked to cover the costs of the cleanup.  In this case, the toxic waste cleanup cost more than $18,000,000.  The consent decree requires the Bradley Mining Company to turn over 11 parcels of land and $7,050,000.  

The EPA is to get 6 of the parcels and $7,000,000 from the Bradley Mining Company.   Elem is to get $50,000 and 5 parcels from the Bradley Mining Company.  The $50,000 going to the Elem community must be paid to the EPA to make sure the 5 parcels are not contaminated.  The 5 parcels are meant to reimburse the Elem Community for the 100+ years of poor health and environmental degradation caused by the mining company.

No where in the Consent Decree is there a mention of the EPA’s violation of the National Historic Preservation Act that caused $35-$56,000,000 in damage to cultural resources on the reservation.  There is no mention of how the general public and the Elem community will be reimbursed for that damage.

The only avenue available to the Elem Community to obtain reimbursement for this loss, is through the court system.  At the time of the EPA’s 2006 violation, the Elem Tribal Council voted to enlist the aid of an attorney to explore the possibility of suing the EPA for those damages.

The consent decree drafted by the EPA stipulates:

Elem Tribe?s Release and Covenant Not to Sue the United States.

The Elem Tribe hereby forever releases, discharges, covenants not to sue, and agrees not to assert (by way of the commencement of an action, the joinder of the United States in an existing action or in any other fashion) any and all claims, causes of action, suits or demands of any kind whatsoever in law or in equity which it may have had, or hereafter have, against the United States, its contractors or employees, including EPA, BIA, and DOI, with respect to the Sulphur Bank Site or this Consent Decree, including, but not limited to:

  1. any direct or indirect claim for reimbursement from the EPA Hazardous Substance Superfund;
  2. any claim arising out of the response actions at or in connection with the Sulphur Bank Site, including any claim based on EPA’s selection of response actions, oversight of response activities, or approval of plans for such activities, and any claim under the United States Constitution, the Constitution of the State of California, the Tucker Act, 28 U.S.C. Sec. 1491, the Equal Access to Justice Act, 28 U.S.C. Sec. 2412, as amended, or at common law;
  3. any claim pursuant to Sections 107 or 113 of CERCLA, 42 U.S.C. Sec. 9607 or 9613, including any claim for damages for injury to, destruction of, or loss of natural resources, and for the costs of any natural resource damage assessment, related to the Sulphur Bank Site.