Federal judge dismisses case mandating US Department of Interior clean contaminated Native lands

Federal District Court Judge H. Russell Holland dismissed the State of Alaska and the Alaska Department of Environmental Conservation (DEC)’s case against the United States for the Department of Interior (DOI)’s failure to clean up Alaska Native Claims Settlement Act (ANCSA) contaminated lands.

“The dismissal of this case is a maddening excuse for the federal government to continue circumventing its responsibility,” said Alaska Governor Mike Dunleavy.

“Instead of looking for loopholes, DOI should focus on the need for action and justice for Alaska Natives and ANCSA contaminated lands; the State of Alaska will continue to do just that.”

The state filed its lawsuit in July of last year in U.S. District Court in Anchorage, with the state represented by a large private firm, Kelley Drye & Warren.

In its complaint, the state argued that 3 prior acts of Congress — in 1990, 1995 and 2014 — required the Department of the Interior to make a full accounting of contaminated sites in Alaska and to come up with plans for their cleanup. The suit also asked the judge to issue an order that would have compelled the DOI to conduct surveys and draft plans for cleanup.

“The federal government has a moral and legal responsibility to address these contaminated sites, which have already languished for far too long,” said Jason Brune, commissioner of the Alaska Department of Environmental Conservation, in a 2021 letter to the secretaries of Defense, Interior and Agriculture.

In a separate letter, Commissioner Brune asked Interior Secretary Debra Haaland to direct the cleanup of known contaminated sites, to which the DOI later responded that, in part, that the “DOI has no statutory authority to compel or conduct the cleanup of lands that have been conveyed out of federal ownership, nor is it able to impose liability for contamination that is reported on those lands.”

Following that exchange, Alaska threatened a lawsuit in December 2021, and followed through with its filing last year.

When dismissing the lawsuit, Judge Holland said that the State had not adequately demonstrated that it was directly injured by the federal government’s actions or inactions. Additionally, the motion to dismiss suggests that Congress never required DOI to take any action, only to draw up reports and a remediation plan for Congress, according to a press release issued by the governor's office.

"Interior Secretary Haaland’s double standard ensures that Alaska Natives’ contaminated lands will remain contaminated,” said Commissioner Brune.

“While the State of Alaska recognizes that responsible parties should clean up their messes, it's noted that the Department of Justice, Bureau of Land Management, and DOI don't hold themselves to that same standard. Apparently, the Biden administration’s and Secretary Haaland’s focus on addressing longstanding environmental justice for indigenous peoples extends to everywhere in the United States except for Alaska."

In a press release, Governor Dunleavy went on to say that Congress was very clear in its 2014 direction to DOI to provide “a detailed plan on how the DOI intends to complete cleanup of each contaminated site.”

“The State cannot imagine clearer language but calls on Congress to provide specific guidance to federal agencies, and funding at a rate that will solve this problem in our lifetimes,” the release stated.

Meanwhile, the Department of Law is evaluating the order closely for purposes of appeal, according to Alaska Attorney General Treg Taylor.

“The State pursued a class-action style Administrative Procedure Act (APA) claim over a site-by-site effort to provide the court with a practical and efficient avenue to address all sites at once and to give Alaskans a remedy to a languishing problem on Native lands. The extensive contamination on many sites transferred under ANCSA certainly lends to other legal avenues for relief, and Alaska will continue to pursue justice on behalf of Alaska Natives.”

"In 1971, ANCSA was enacted to address claims by Native Americans that they rightfully owned lands claimed by the United States, conveying 44 million acres of land to regional and village corporations. However, the selection and transfer-of-ownership process did not include screening for and addressing environmental contaminants. Almost 1,200 sites have been identified by the Bureau of Land Management as being contaminated at the time of conveyance," according to the press release.