Full opinion text
ORDER LODGE, District Judge. I. INTRODUCTION A. Nature of Case While there is ample room for disagreement on the facts and the law as it is to be applied to this case, it is undisputed that this case is unique in its size, its history and its complexity. The case is of great importance and calls for the exercise of the greatest care and caution in its consideration, a task that is very difficult when expert witnesses with impeccable qualifications reached opposite conclusions on almost every issue. In McCarthy v. Bunker Hill & Sullivan Mining & Concentrating Co., 164 F. 927 (9th Cir.1908), cert, denied, 212 U.S. 583, 29 S.Ct. 692, 53 L.Ed. 660 (1909), a case heard by the Ninth Circuit in 1908, concerning the issues that were in their infancy on matters pertaining to this very case, the Court commented on the fact that “the briefs also disclosed intense feelings on the part of opposing counsel, which, perhaps is not unnatural in view of all the circumstances of the case and of the large interests involved.” Id. at 939. It is this Court’s opinion that in this regard, nothing has changed. The Court allowed the parties sufficient time after the taking of the evidence to negotiate settlements. The Tribe and As-arco reached a settlement. No other settlements were reached. The Court is now prepared to rule on the evidence and law. After listening to approximately 100 witnesses, 78 days of trial and having reviewed 8,695 exhibits and over 16,000 pages of testimony, it is the judgment of this Court that while CERCLA was enacted to protect and preserve public health and the environment by facilitating the expeditious and efficient cleanup of hazardous waste sites, the conditions in the Coeur d’Alene Basin have and are improving through the joint efforts of the EPA, the Tribe, the State of Idaho, the private sector (including the land owners) and through the natural recovery of mother nature. The liability of certain responsible parties including Hecla and Asarco is evident, but the Defendants are correct when they argue that there has been an exaggerated overstatement by the Federal Government and the Tribe of the conditions that exist and the source of the alleged injury to natural resources. To put this case in proper perspective, one has to review the history of over 100 years of mining in the Coeur d’Alene Basin, what efforts were made to deal with the problems as they became evident, what direction the Courts and the State of Idaho legislature gave to interested parties, what contribution, if any, the Federal Government and Tribe made to the conditions, how urbanization, forest fires and floods also impacted the environment, how settlements between certain parties may have changed the landscape and what are the observations and experiences of the people who live in the Coeur d’ Aleñe Basin today. The industrial revolution has given way to the environmental revolution. In the 1960s, this country began to recognize the importance of taking steps to protect the environment and to curtail or limit the impact of mining for metals necessary for society. It is undisputed that the mining companies in the Silver Valley were impounding their mine tailings by 1968. CERCLA was passed in 1980 and seeks to hold the mining companies liable for many acts that were taken prior to the existence of the statute. The mining companies have attempted to comply with the applicable environmental regulations to minimize the impact of mining. Testimony establishes that Defendants Asarco and Hecla followed the evolving commonly accepted mining practices of the day and even took steps beyond what was required to limit the impact to the environment. Many of these steps were approved by the trial and appellate courts. The economic livelihood provided by mining in the Silver Valley cannot be ignored when considering the legal issues before the Court. Mining provided jobs and materials needed both in times of peace and war. This Court is charged with upholding the laws of this country. In meeting this charge, the Court must look to the language of the statute and the interpretations by other courts. In the case of CERCLA, the Court’s finds its hands are often tied and “justice” is dictated by the statutes passed by politicians who at the time could not have imagined the factual scenario pending before this Court. CERCLA has the well-intended purpose of protecting the health and well being of the environment and its inhabitants. But by the time CERCLA was passed, much of the damage to the environment due to mining in the Coeur d’Alene Basin had already been set in motion and could not be reversed by the passage of a comprehensive environmental statute. CERCLA is to be liberally construed to achieve its goals, but “we must reject a construction that the statute on its face does not permit and the legislative history does not support.” Carson Harbor Village v. Unocal Corp., 270 F.3d 868, 881 (9th Cir.2001), (en banc), cert, denied, 535 U.S. 971, 122 S.Ct. 1437, 152 L.Ed.2d 381 (2002), (citing 3550 Stevens Creek Assocs. v. Barclays Bank, 915 F.2d 1355, 1363 (9th Cir.1990)). Justice and fairness is what is required in this complex case. The Court will apply both these qualities in considering the applicable statutes and the relevant facts. B. Plaintiffs’ Claims Plaintiff United States seeks to recover from the Defendants for response costs, natural resource damages under CERCLA and for natural resource damages pursuant to the Clean Water Act (“CWA”). The Tribe seeks to recover from the Defendants for natural resource damages under CERCLA. The Court will set forth the elements which must be established by a preponderance of the evidence for the Plaintiffs to prevail on each claim. The elements of a response costs claim under CERCLA: A. each mining-related property owned and operated by a defendant is a “facility;” B. a “release” or “threatened release” of a “hazardous substance” from the facility has occurred; 3) the release or threatened release has caused the United States to incur response costs; and 1. Defendants fall within at least one of the four classes of responsible parties described in § 9607(a). The elements of a natural resource damages claim under CERCLA: 1. each mining-related property owned and operated by a defendant is a “facility;” 2) a “release” or “threatened release” of a “hazardous substance” from the facility has occurred; 3) Defendants fall within at least one of the four classes of responsible parties described in § 9607(a); 4) natural resources within the trusteeship of the Plaintiffs have been injured; and 5) that the injury to natural resources “resulted from” a release of a hazardous substance. The elements for a claim under the Clean Water Act: A. there was a discharge of a hazardous substance; B. from an onshore facility owned or operated by the Defendants; C. into or upon the navigable waters of the United States; and D. that natural resources have been damaged or destroyed as a result of the discharge. C. Defendants’ Claims Defendants do not dispute that tailings were released into the environment as a result of mining in the Coeur d’Alene Basin. Defendants disagree with the percentage of liability Plaintiffs seek to hold each defendant responsible for and argue that other causes outside their control have negatively impacted the environment. Defendants also seek to hold the United States hable for contributing to hazardous substance releases. Defendants also disagree with the Plaintiffs’ claims of “injury” to natural resources and claim instead the environment is better off now as compared to the study in the 1930s and the environment is naturally repairing itself. Finally, even if liability is established, Defendants maintain application of CERCLA is unconstitutional. II. FINDINGS OF FACT Since this was a bench trial involving primarily battling experts, it is up to the Court to weigh the evidence presented and to attempt to ascertain the truth. Based upon the evidence contained in the record and presented at the trial, the Court finds that the facts are as follows. To the extent the Court has concluded that the evidence in the record does not support certain assertions, allegations or claims made, they will not be included in the Court’s finding or otherwise referenced herein. The failure to mention an act, event or series of events in these findings is an indication that the evidence submitted to the Court does not support a finding and conclusion in favor thereof. A. Asarco as Owner and Operator. 1. Asarco is an owner and/or operator for purposes of CERCLA. 2. Asarco’s corporate representative, Chris Pfahl testified as to the history and ownership interests of the company. The American Smelting and Refining Company was organized in 1899 and changed its name to Asarco Incorporated in the 1970s. In 1953, Federal Mining and Smelting Company (“Federal”) merged into Asarco. Empire State-Idaho Mining and Development Company (“Empire”) was formed in 1898 and was merged into Federal in 1903. 3. Asarco and/or its predecessors in interest owned and/or operated the following mines and nulls: the Tiger-Poorman Mine and Mill; Morning Mine and Mills; Last Chance Mine and Mill and Sweeney Mill; Page and Blackhawk Mines, Page Mill, and Page Swamps and Im-poundments; Standard-Mammoth Mine and Mills; Helena-Frisco Mine and Mill; Coeur Mine and Mill; Galena Mine and Mill, and the Osburn and Galena Tailings Im-poundments. B. Hecla as an Owner or Operator. 1. Hecla is an owner and/or operator under CERCLA 2. Mr. White, Mr. Drew, Mr. Noyes and Mr. Rosasco provided information regarding the corporate history of Hecla via Rule 30(b)(6) depositions. In 1891, the Hecla Mining Company was first incorporated in Idaho. In 1898, an entity called the Hecla Mining Company was incorporated in Washington. Thereafter, the properties belonging to the Idaho Hecla Mining Company were transferred to the Washington corporation and the Idaho corporation was dissolved. In 1983, the Hecla Mining Company remained incorporated in Washington. 3. In 1983, Hecla merged its Washington corporation into a newly-created Delaware corporation named Hecla Mining Company that was the successor to the Washington Hecla Mining Company. The Hecla Mining Company that was incorporated in Delaware in 1983 succeeded to all of the liabilities of the Hecla Mining Company previously incorporated in Washington. 4. Hecla and/or its predecessors in interest owned and/or operated the following mines and mills: the Hecla Mine and associated mills, the Star Mine and Mill, the Hercules Mine and Mills, the Sherman Mine and Mill, the Dayrock Mine and Mill, the Lucky Friday Mine and Mill, the Gold Hunter Mine and associated mills, and the Tamarack and Custer Mine and associated mills. C. Releases of Hazardous Substances 1.Dr. Quivik is an expert witness for the United States in the field of the history of technology. He described historic milling operations of mills or mineral concentrators in the Coeur d’Alene Basin. His testimony primarily focused on mill ownership, operation, and waste disposal practices. Drs. Bull and Stott were the experts retained by the parties to calculate the amount of tailings released. 2. Due to the expansion of the railroad lines in northern Idaho, ore production in the Coeur d’Alene mining district started to escalate in the late 1890’s. The waste product of the milling process is referred to as tail-ings. Depending on the method of milling being used the size of the tailings varied. Generally speaking, jig tailings are about 1/2 inch to 3/8 inch in size and floatation tailings are l/100th of an inch in size. Floatation method dominated by 1926. Tailings were disposed of by impounding or stacking on surface soil, returned to mine as underground fill (sandfill) or discharged directly into waterway (creek or river). 3. Tailings management became a serious issue for all mining companies due to the sheer volume of tailings being released by the mines and mills. 4. To alleviate problems arising from tailings reaching the South Fork of the Coeur d’Alene River, the mining companies formed the Mine Owners Association (“MOA”) in 1901. The MOA’s first order of business was to build two dams for the purpose of impounding tailings. These dams, known as the Osburn and Pine Creek Dams, were both in place by 1902. Also, an association of mining companies operating on Canyon Creek, known as the Canyon Creek Tailings Association, built the Canyon Creek dam in 1907. 5. These dams impounded tailings generated at mills owned by the mining companies until a huge flood event breached the three dams in 1917. 6. The dams were not repaired due to the MOA’s purchase of overflow easements and of land within and adjacent to the floodplain of the South Fork and Mainstem of the Coeur d’Alene River. The MOA, through its trustee and the Debris Fund, purchased over 5,000 acres of land and 45,000 acres of overflow easements. The land and the overflow easements were purchased by the mining companies to ensure that persons downstream of mining operations were compensated for potential property damage due to tailings deposition. 7. As mining operations continued to grow and finer tailings were produced through flotation milling methods, the mining companies took steps to try to prevent tailings from reaching Lake Coeur d’Alene. To that end, the mining companies constructed the Cataldo Dredge in 1932 through the Dredge Fund by which to remove tailings from the Coeur d’Alene River. The dredge operated from 1932 until 1968, the year tailings impoundments were in place at all operating mills. The dredge was successful in removing over 32 million tons of tailings from the river. 8. Forest fires, channelization and urbanization has impacted the waterways and soil, but the largest source of metal loading in the Basin is from mining waste. Separating the damage to the environment from other causes versus the mining waste will be determined in the second phase of trial. 9. Twenty-two mills were investigated by Dr. Bull and Dr. Stott and this represents 97-98% of mining production in Basin. 10. After researching or estimating recovery rates and adjusting for im-poundments and use of tailings as sandflll during the mining process, Dr. Bull calculated total tailings released into the waterways in the Basin at 64,390,000 tons. Asarco is responsible for at least 22% of the historical total and Hecla’s is responsible for at least 31% of the historical total releases of tail-ings which contained hazardous substances. Together, these two Defendants were responsible for over one-half of the total tailings disposed of in the Basin. 11. Separately, each defendant released more than a de minimis amount of hazardous substances into the environment. The amount of historical tailings contributed by each Defendant are in such quantity that at least some of the injury in the Basin would have occurred if only Asarco’s or only Hecla’s amount of tailings had been released into the environment. 12. Variations exist in the amount of lead, cadmium and zinc in the tail-ings, but all experts agreed tailings contain lead, cadmium and/or zinc and such are hazardous substances under CERCLA. 18. The releases of hazardous substances continue in the water, ground water and soil during the cyclical high water events in the Basin. 14. Additionally, there are ongoing releases of hazardous substances from the leaching at mining adits, tailings impoundments, and waste rock piles. The exact amount of injury due to such leaching and seepage should be established at the next phase of trial. 15. Releases of hazardous substances have flowed downstream via the tributaries of the South Fork of the Coeur d’Alene River and Coeur d’Alene River. Such releases are flowing into Lake Coeur d’Alene and on out the lake into the Spokane River. D. Injury from Releases 1. The releases that occurred in the Basin and continue to occur, have caused injury to natural resources in the Basin. 2. Leaching of hazardous metals from mining waste, including mixed tail-ings and alluvium in the beds and banks of the rivers and streams of the Basin, occurs whenever mining waste is exposed to elements and this creates a cycle of continuing releases of hazardous substances. 3. While there has been some improvement since the environment was studied by Ellis in the 1930s, concentrations of metals in surface water, ground water, soil and sediments are not recovering to the extent or within the time frame dictated by CERCLA and related statutes. 4. The co-mingled mining waste is the primary cause of the damage to natural resources in the Basin. 5. Water quality criteria are exceeded for metals in the South Fork and its tributaries and this is primarily due to the metals from the tailings. While it is true the Box contributes significant metals to the water flowing into Lake Coeur d’Alene, the co-mingled metal loads upstream of the Box by these Defendants are significant enough to cause the injury to the water quality even after discounting the metal loads from the Box. 6. Ground water is affected by mining waste as demonstrated by metals content levels which exceed drinking water standards and aquatic life criteria. 7. Sediment concentrations of metals throughout the Basin exceed the applicable baseline. Vegetation has been impacted by the mining hazardous substances. Reduced vegetation for the South Fork of the Coeur d’Alene River is primarily due to the metals contamination from mining tailings. 8. The levels of lead in the lower Basin are affecting certain species of birds in the wetlands of the lower Coeur d’Alene Basin primarily as a result of their eating habits. While the overall population of other types of birds are increasing, the tundra swan in particular are being injured by the release of hazardous substances found in their food source. 9. Certain fish in the Coeur d’Alene Basin, particularly the South Fork of the Coeur d’Alene River and its tributaries have not adapted so readily as other species showing some injury from the mining tailings released by the Defendants. 10. Benthic organisms are being exposed long-term to sediment lead and zinc concentrations found in Coeur d’Alene Lake. However, scientists disagree over whether there is any measurable injury and additional study is being requested. 11. There was no evidence supporting injury to any other species of wildlife. 12. Due to releases of hazardous substances from mining (particularly zinc), chlorophyl levels in Coeur d’Alene Lake are not at normal levels and Coeur d’Alene Lake is potentially at risk. 13. The lead level in children in the Basin has been shown to be elevated. The increased lead levels are a result of the historical and the ongoing releases of mining tailings in the water and soil of the Basin during high water events. 14. There was no credible evidence shown to establish any injury to the people living in North Idaho resulting from the consumption of fish and birds from the Basin. 15. The 1996 lead level study was the primary reason the Basin-wide RI/FS process was started by the EPA. 16. Cultural uses of water and soil by Tribe are not recoverable as natural resource damages. E. Trusteeship 1. The federal government has delegated primary duties to control and manage fish and birds to the State of Idaho. Neither the federal government nor the State of Idaho manage or control macro invertebrates, however such are food sources for fish and birds and are presumably managed by the trustee of the birds and the fish. 2. The submerged lands at issue belong to the State of Idaho and the Tribe. The federal government owns very little of the land at issue in the Basin where the mining tail-ings have come to be located. Most of the land at issue is state land or private property, so the federal government may not be the trustee of such lands. However, the federal government may still have an interest in enforcing the cleanup of such land under CERCLA. 3. The federal government has jurisdiction over navigable waters in the Basin. Control and management of water quality is performed by both the federal and state governments. F. Response Costs Incurred 1. Response costs due to the injury to water and soil have been incurred by the EPA in the Basin. Specifically, response costs have been established in the form of dollars spent on yard removals of lead contaminated soils in the Basin (and outside the area Known as the Box which is covered by a separate consent decree with Asareo and Hecla). 2. EPA study costs related to soil and sediment also qualify as response costs under CERCLA. G. United States Involvement in the Basin 1. It is undisputed that the United States Government has been involved in many aspects of the Basin. 2. During World War II, the United States government controlled: the price for the metals via the premium price plan and quota system; wages for mining and non-mining personnel; the length of the work week; and approval of capital improvements, equipment and necessary chemicals for processing via the priority system.. The government provided military oversight of the security of the mills and required certain changes be made by the mills for their security. Laborers were restricted by the government from taking other employment and soldiers were offered deferments from military service to work in the mines and mills. The mines and mills were required to submit monthly operating reports to the government. The government provided financing for the exploration of new sources of metals via the exploration premium plan. The government was aware of the tailings generated from the mining and milling and of the disposal method used for such tailings. The government threatened seizure of the operations if certain conditions were not complied with by the mining companies. 3. The government was aware and approved the use of tailings as construction material for Interstate 90. 4. The Bureau of Land Management (“BLM”) was involved in the dredging of the Cataldo area. 5. The United States is responsible for certain undisputed identified abandoned mines and unpatented mining claims located in the Basin. 6. Bureau of Mines (“BOM”) was a sponsoring organization for an experimental study regarding approximately 500 tons of tailings that were moved to tailings ponds. 7. The United States government played an active role in metals exploration contracts in the Basin. III. CONCLUSIONS OF LAW ON PLAINTIFFS’ CLAIMS A. CERCLA in General CERCLA “generally imposes strict liability on owners and operators of facilities at which hazardous substances were disposed.” 3550 Stevens Creek Assocs. v. Barclays Bank, 915 F.2d 1355, 1357 (9th Cir.1990). The two central purposes of CERCLA are: “to ensure the prompt and effective cleanup of waste disposal sites, and to assure that parties responsible for hazardous substances [bear] the cost of remedying the conditions they created.” Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1300 (9th Cir.1997) (internal quotation marks and citation omitted). As recently stated by the Ninth Circuit, CERCLA is not a model of legislative clarity as it contains numerous inconsisten-des and redundancies. See Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863 (9th Cir.2001), (en banc) cert, denied, 535 U.S. 971, 122 S.Ct. 1437, 152 L.Ed.2d 381 (2002). Additionally, the limited legislative history is not very helpful in interpreting Congress’ intent. In addressing issues of first impression, this Court has done its best to interpret the relevant sections of CERCLA consistent with the canons of statutory construction. B. Justiciability/Ripeness Defendants argue that the current action for natural resource damages is barred by 42 U.S.C. § 9613(g)(l)(B)(ii) until the remedial action being performed pursuant to the RI/FS is completed. Defendants also maintain that the claims of the Plaintiffs are not ripe for court review as there is no “case or controversy” since the damages are speculative and court review at this time is not prudent in light of the on-going nature of the RI/FS. Plaintiffs argue that the response cost claim is ripe and NRD claim is also ripe as it was filed before any EPA actions was taken regarding the Basin-wide RI/FS. Further Plaintiff argues the claims are ripe as injury has been established in the first phase and the second phase will deal with damages. Section 9613(g) provides in part: Period in which action may be brought. (1) Actions for natural resource damages .... In no event may an action for damages under this Act with respect to such a vessel or facility be commenced (i) prior to 60 days after the Federal or State natural resource trustee provides to the President and the potentially responsible party a notice of intent to file suit, or (ii) before selection of the remedial action if the President is diligently proceeding with a remedial investigation and feasibility study under section 104(b) or section 120[42 U.S.C. § 9604(b) or § 9620] .... In this case, at the time the lawsuit for natural resource damages was filed, EPA had not made the decision to begin the RI/FS process on the Basin. Accordingly, it would be improper to allow Defendants to use § 9613 as a shield against the natural resource damage claims that were properly filed. Further, as admitted to by the Defendants, the claims for response costs are properly before the Court. As to Defendants ripeness claim, the Court finds this argument to be without merit. Injury evidence has been presented by the Plaintiffs and based on this Court’s bifurcation of the trial, the dollar amount of damages will not be addressed until the second phase of the trial. Pursuant to CERCLA, the Court will not allow for double recovery of damages and Plaintiffs will have to carry théir burden of proving damages regardless of the status of the RI/FS. While the Court acknowledges that the EPA issued its’ Record of Decision on September 12, 2002 on the RI/FS , the issues before this Court are ripe for judicial review. C. Alleged Taint by EPA Defendants have repeatedly raised the issue of “taint” in this trial. Defendants argue there has been an improper co-mingling of government enforcement and regulatory functions. Plaintiffs maintain the decision by the EPA to proceed with the RI/FS was made independent of this litigation. The testimony and record before this Court do not contain the “smoking gun” Defendants need to support their claim of taint. While the Court found it hard to believe there were no written documents explaining the decision to conduct an RI/ FS, the Court is satisfied with the credibility of the testimony by EPA officials that the decision was not based on the litigation in this case. It cannot be denied that the impact of the RI/FS decision on this litigation was discussed by EPA officials and/or DOJ counsel. However, discussion of the impact does not make this litigation the driving force behind the decision to proceed with a RI/FS. The record supports the EPA officials testimony that the main factors that went into the December 1997 decision to conduct a RI/FS were: 1) the 1996 exposure assessment results indicating elevated blood levels outside the Box and elevated soil concentrations and 2) the realization that the Clean Water Act was not sufficiently addressing contamination in the floodplains, the bed and banks and the lateral lakes areas. Ms. Nearman testified she was requested by DOJ to prepare an estimation of costs to support this litigation. She termed this request a “functional equivalent RI/FS.” This “functional equivalent did not have any public process associated with it and did not involve the completion of studies to determine injury.” Instead, it was a cost estimate of damages for the present litigation. The Court finds the functional equivalent RI/FS was not the reason EPA decided to conduct a comprehensive and public RI/FS on the Basin. It is not this Court’s job to second guess agency decisions. This court must “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transp. Inc. v. Arkansas-Best Freight System, 419 U.S. 281, 286, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974). “[Djeference is accorded agency environmental determinations not because the agency possesses substantive expertise, but because the agency’s decision-making process is accorded a ‘presumption of regularity.’ ” Akiak Native Community v. U.S. Postal Service, 213 F.3d 1140, 1146 (2000). The agency’s path for conducting a basin-wide RI/FS is independent of this litigation. When Ms. Nearman transferred to the Coeur d’Alene area, one of the first issues she began to hear about was the need for cleanup outside the 21 mile superfund “Box.” The players involved in the decision and the timing of the request for the “functional equivalent RI/ FS” and the EPA’s decision to conduct a basin-wide RI/FS are granted a presumption of regularity by this Court regarding the agency’s decision to conduct a basin-wide RI/FS. Moreover, the facts of this case are dissimilar to those in Bethlehem Steel Corp. v. United States Environmental Protection Agency, 638 F.2d 994, 1008-10 (7th Cir. 1980). In Bethlehem Steel, the same attorneys involved with reviewing and recommending a disposition of a delayed compliance order were also in charge of the ongoing enforcement proceeding against Bethlehem Steel. The court held that in light of the circumstances of that particular case, there existed sufficient questions regarding the propriety of the agency’s procedures to require a remand. In the present case, certain DOJ attorneys were involved in meetings regarding the effect of a Basin-wide RI/FS, but the ultimate decision-makers regarding the Basin-wide RI/FS were not directly involved in this litigation. The facts before this case regarding taint are also sufficiently distinguishable from the facts in South Carolina Department of Health and Environmental Control v. Atlantic Steel Industries, Inc., 85 F.Supp.2d 596, 605 (D.S.C.1999). In Atlantic Steel, the agency contracted with attorneys who formerly represented other settling PRPs to sue for contribution against the non-settling PRPs. Atlantic Steel claimed “an inappropriate relationship between the agency and lawyers who formerly represented parties adverse to the agency.” Id. at 601. The court held a “court must sometimes look beyond the administrative record presented to the court because the integrity of the administrative record is relevant to the inquiry into the propriety of an agency’s decisions or its actions. Id. at 603. “[T]he administrative record presented to the court ... is tainted to the point that the court cannot rely upon it in its present condition.” Id. at 605. In the present case, the DOJ attorneys who represented the agency have not been shown to have had inappropriate relationship with DOJ attorneys litigating the claims before this Court. The Court finds that the alleged taint has not been proven by a preponderance of the evidence and is not grounds for any relief for the Defendants in this litigation. The Court leaves for another day the question of the appropriate standard of review for the basin-wide RI/FS should it be challenged in court. D. Retroactivity The Court has previously addressed the Defendants arguments that CERCLA cannot be retroactively applied under the facts of this case. See Order dated September 30, 1999 (Docket No. 635). The Defendants argument that the retroactive application of CERCLA in this case is a taking or in violation of the due process clause of the Constitution as discussed in Eastern Enterprises v. Apfel, 524 U.S. 498, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998), is reserved until the dollar amount of the damages is established in the second phase of the trial. E. Releases and/or Damages Post-Enactment “There shall be no recovery where such damages and the release of a hazardous substance from which such damages resulted have occurred wholly before the enactment date of this Act.” 42 U.S.C. § 9607(f)(1). It is undisputed based on the testimony of the historical experts and mining company representatives that the mining companies dumped mill tailings directly into the creeks and rivers of the Basin. CERCLA was enacted on December 11, 1980. Defendants argue that since they were impounding tailings from around 1968 on, there were no “releases” post-enactment. Further, since the “injury” occurred at the time of the release and the environmental conditions have been continually improving since the Ellis environmental study around 1930, there are no “damages” post-enactment and the NRD claims should be dismissed. The Plaintiffs respond that hazardous substance are still being released or re-released in the Basin, so there are releases post-enactment. Plaintiffs also argue that it is the date an injury is quantified and not when the release occurs that makes the injury in this case post-enactment. The term “release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant) _42 U.S.C. § 9601(22). Did the original dumping of mine tailings prior to 1968 constitute a “release” under CERCLA? Yes. Have there been “releases” of mine tailings after 1980? Yes, but the releases post-1968 have been minimal compared to the nature and quantity of the released hazardous substances pre-1968. The Court finds there have been post-1980 releases from the tailings ponds, waste rock piles and adits. However, the total hazardous substance load from these sources is extremely minimal in comparison to the extensive releases prior to 1968. Furthermore, NPDES permits do exist for some of the on-going discharges. The next question becomes have there been “re-releases” of mine tailings since the enactment of CERCLA? Arguably, the answer to this question is yes. While the statute does not use or define the term “re-releases,” the case law supports such a concept. The recent Ninth Circuit en banc decision in Carson Harbor Village, Ltd., v. Unocal Carp., 270 F.3d 863 (9th Cir.2001) (en banc) cert, denied, 535 U.S. 971, 122 S.Ct. 1437, 152 L.Ed.2d 381 (2002), is instructive by analogy. In Carson Harbor, the Court held that passive soil migration of hazardous substances could not be characterized as a “disposal” under CERCLA. However, the Carson Harbor court did not have before it whether passive soil migration of hazardous substances or passive water migration of hazardous substances could constitute a “release” under CERC-LA. This Court finds the issue of whether the passive water migration of contamination unaided by human conduct can constitute a “release” to be one of first impression. In Carson Harbor, 270 F.3d 863 (9th Cir.2001), (en banc), cert, denied, 535 U.S. 971, 122 S.Ct. 1437, 152 L.Ed.2d 381 (2002), the court noted there is a fine line distinction between a release and a disposal under CERCLA. A “disposal” is included in the definition of a “release,” but not all releases are “disposals” as “disposal” is a subset of the term “release.” CERCLA defines “disposal” for purposes of § 9607(a) with reference to the definition of “disposal” in RCRA, see 42 U.S.C. § 9601(29), which in turn defines “disposal” as follows: The term “disposal” means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters. 42 U.S.C. § 6903(3) (emphasis added). Under this definition, for the Partnership Defendants [Trusts] to be PRPs, there must have been a “discharge, deposit, injection, dumping, spilling, leaking, or placing” of contaminants on the property during their ownership. Id. Although we have previously concluded that RCRA’s definition of “disposal” is “clear,” 3550 Stevens Creek Assocs., 915 F.2d at 1362, whether the definition includes passive soil migration is an issue of first impression in this circuit. Id. at 875. In Carson Harbor, the Court held movement that does result from human contact is a disposal. Id. at 877. In the present case, after the human contact associated with the dumping of tailings into the adjacent waterways, the movement of contamination down the waterway or through the groundwater was not as a result of further human contact with the hazardous substances. Rather, there were re-releases of hazardous substances via the passive form of seepage, leaching and migration due to flowing water. “Seepage” is not a descriptive term in the definitions of disposal or release. Seepage in this case seems most similar to “leaching” rather than “leaking” which according to the Carson Harbor court may require a container. “Leaching” is specifically included in the definition of “release.” Accordingly, this Court finds the passive migration caused by leaching from variations in low and high water is a post-enactment release under CERCLA. The Defendants or their predecessors knowingly dumped hazardous substances into the waterways. This was the standard mining practice in the Coeur d’Alene Basin and at other mine sites beginning as long as a 100 years ago. The Defendants were aware that water runs downhill and that the hazardous substances dumped would not stay in the location they were dumped. The hazardous substances became located throughout the floodplain of Canyon Creek, Nine Mile Creek, the South Fork of the Coeur d’Alene River and the main stem of the Coeur d’Alene River. The hazardous substances also became part of the alluvial soil. The cases cited by the Plaintiffs to support their argument for “re-releases” are also supportive of the finding that re-releases occurred post-enactment. In A & W Smelter and Refiners, Inc. v. Clinton, 146 F.3d 1107, 1110 (9th Cir.1998), the court stated that the wind blowing particles from an ore pile was a “release.” This Court agrees that wind blown passive releases are similar to the passive releases from waste rock piles or adits (which would be “leaching” or “seeping” without active conduct by the pollution generator). In United States v. Shell Oil Co., 841 F.Supp. 962, (C.D.Cal.1993), the Court held that acid sludge seeping through the soil cover to the surface was a release. The court went on to state that “the fact they [the seeps] continue to occur presents an ongoing threat of further release of hazardous substances into the environment.” Id. at 969. The Plaintiffs argue this recognized example of a “continuing release” is the same type of continuing release caused by the lead, cadmium and zinc in the soil and ground water that is “continually re-released” into the water during high water flows in the Basin. This Court agrees. The Ninth Circuit has stated that the test is not generally as simple as was there an actor at the time of the release. See Carson Harbor. While it may make sense to determine when there was an “action” that caused the release as a spilling, leaching or dumping of tailings into the environment, the Ninth Circuit has established whether there was “action” is not the determinative factor. The action in this case occurred when the mining companies had control of the tailings and elected to dispose of said tailings into the waterways. The tailings remained in the waterways in many different forms. Some tailings immediately traveled downstream with the water and some tailings entered the groundwater and during periods of high water moved further downstream. This passive movement and migration of hazardous substances by mother nature (no human action assisting in the movement) is still a “release” for purposes of CERCLA in this case. The Court is mindful that its interpretation of releases in this case occurring post-enactment opens the door for the Defendants to be held liable for actions taken decades earlier that continue to move through the waterways and alluvial soil. However, this interpretation is consistent with the broad remedial purposes of CERCLA. Moreover, as discussed next, even if the releases did not occur post-enactment, the Defendants would still be liable as the damages were quantified post-enactment. H. “Damages” Alternatively, even if the Court is incorrect on its finding of liability for post-1980 “re-releases,” there would still be CERCLA liability for these pre-1980 releases since the damages associated with such releases occurred post-enactment. In this case, the Defendants are liable due to the fact that the bulk of the damages have occurred post-enactment and the statute only excuses liability if the release and the damages both occur pre-enactment. The Court finds the Ninth Circuit opinion in Aetna Casualty and Surety Co., Inc. v. Pintlar Corp., 948 F.2d 1507 (9th Cir.1991) to be binding precedent on how the Court should approach the critical definition of “damages” in § 107(f)(1). In Pintlar, the court defined the term “damages” in § 107(f)(1) NRD claims as “the monetary quantification stemming from an injury.” Id. at 1515. Pintlar involved insurance claims for cleanup of the Bunker Hill site. In Pintlar, the Ninth Circuit cited the analysis of In Re Acushnet River & New Bedford Harbor Proceedings, 716 F.Supp. 676, 681 (D.Mass.1989) for the analytical reasoning supporting this definition. In Acushnet, the court rejected the argument to define “damages” in § 107(f)(1) as the injury to natural resources. In defining “damages” as the monetary quantification of the injury to natural resources, the court relied on § 107(a)(4)(C). The court reasoned the phrase “such damages” used in § 107(f)(1) did not mean injury to natural resources, but instead more closely resembled the definition of damages used in § 107(a)(4)(C) which is distinct from “injury.” Although the definition of “occurred” was not directly addressed in Pintlar, this Court finds that the definition in Acushnet for “occurred” should also be adopted. The defendants in Acushnet argued that damages “occur” when the injury occurs. The court rejected this argument and held “that ‘damages’-i.e., monetary quantification of the injury done to the natural resources-'occur’ as a general rule when the property owner in this example, or some entity as a general rule, incurs expenses due to the injury to natural resources.... ” DOFs regulations also support this interpretation of “damages.” DOI regulations define “damages” to mean “the amount of money sought by the natural resource trustee as compensation for injury, destruction, or loss of natural resources as set forth in section 107(a) or 111(b) of CERCLA” 43 C.F.R. § 11.14®. In the case at bar, the Plaintiffs had the burden of proving by a preponderance of the evidence that the “damages” of § 107(f) “occurred” after enactment of the Act even though significant relevant releases occurred prior to the enactment of the Act in order for the damages to be recoverable under § 107(f)(1). Plaintiffs have established by a preponderance of the evidence that a significant amount of the damages occurred post-enactment when the federal government and Tribe began studying the “injury” caused by the mining industry and how to clean up the injury to the natural resources. Accordingly, the Plaintiffs’ claims for damages are viable as post-enactment claims under CERCLA. F. Trusteeship Defendants allege the Plaintiffs are not “trustees” over many of the natural resources at issue. Defendants argue that certain natural resources are not under the actual stewardship of the federal government or the Tribe, so damages cannot be assessed for their injury, loss or destruction. Plaintiffs argue the federal government and the Tribe had the statutory authority to control the natural resources and can therefore recover. The problem with the Plaintiffs’ argument is that it ignores the State of Idaho’s management and control of the natural resources and the fact the State of Idaho settled its natural resource claims. It is true that CERCLA does not permit private parties to seek recovery for damages to natural resources held in trust by the federal, state or tribal governments nor does it allow public trustees to recover for damages to private property or other “purely private” interests. See Ohio II, 880 F.2d at 460 (“The legislative history of CERCLA further illustrates that damage to private property-absent any government involvement, management or control — is not covered by the natural resource damage provisions of the statute.”); Exxon Corp. v. Hunt, 475 U.S. 355, 375, 106 S.Ct. 1103, 1116, 89 L.Ed.2d 364 (1986). National Ass’n of Mfrs. v. U.S. Dept, of Interior, 134 F.3d 1095, 1113(D.C.Cir.l998). “A ‘trustee’ is a federal, state or Indian tribal official who, in accordance with 42 U.S.C. § 9607(f)(2), is designated to ‘act on behalf of the public as [a] trustee[ ] for natural resources.’” Id. at 1098, n. 1. “Natural resources” is defined by CERCLA as: land, fish, wildlife, biota, air, water, groundwater, drinking water supplies and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States.... ” 42 U.S.C. § 9601(16). The Secretary of the Interior promulgated regulations for the assessment of damages for injuries to natural resources. The Secretary stated in the preamble to the final NRDA regulations: CERCLA provides that trustee officials can only recover damages for injuries to those resources that are related to them through ownership, management, trust, or control. These relationships are created by other Federal, State, local and tribal laws. Final Rule, 59 Fed.Reg. 14262, 14268 (Mar. 25,1994). Based on the Court’s research and practical application of the trusteeship concept, the Court finds that whether the Tribe and the United States have exercised trusteeship over the natural resources at issue is a question of both fact and law. The parties basically agree that trusteeship is not an all or nothing concept. In fact, in many instances, co-trustees are the norm and not the exception. The factual predicate of trusteeship, however, is to be determined on a case by case basis depending on who the resource belongs to, who is it managed by, who controls the same and how the resource appertains to other resources. Resources must be under the stewardship of a trustee before damages can be assessed for their injury, loss or destruction. In order to avoid a double recovery, the Court has to do what Dr. Jacobson testified to and that is give a consistent meaning to the ordinary and commonly understood interpretation of these words, i.e., which entity, if any, exercises the hands on day-to-day activity of the various natural resources. The Court rejects the Government’s argument that mere statutory authority is sufficient to establish trusteeship over a natural resource. Power that is not exercised is not management or control even though in a legal sense the resource may belong in part or appertain to that party. While the Government is correct in their argument that there is not a double recovery until the total value of the damaged or injured resource has been recovered, a given trustee cannot recover more than what its stewardship is determined to be. To allow otherwise would create the undesirable situation of a race to the courthouse between co-trustees with the first in time being the first in right. Moreover, once a state, federal or other public trustee recovers such damages, res judicata would prevent a second trustee from recovering the same public losses. Alaska Sport Fishing Ass’n v. Exxon Corp., 34 F.3d 769 (9th Cir.1994) (holding that the United States and the State of Alaska as public trustees under the CWA and CERCLA could recover all lost use damages caused by the spill and that private claims for lost recreational use were barred under res judicata). Likewise, settlement would be discouraged by a responsible party if that party knew that even though it had settled a dispute with the trustee representing either the federal, state or tribe that a second trustee representing the non-settling trustee could come in and recover not only its interest, but whatever later may be determined to be the value of the resource the settling trustee did not recover for. The evidence has not shown nor have counsel provided legal authority that would prohibit or suggest that there cannot be co-trustees of our natural resources. In fact, the law clearly anticipates the same because in practice that is the only feasible way it could work. The migration of birds and fish from one area to another and the use of habitat as they move demonstrate that our natural resources are not static to one area. If the natural resources are damaged, killed or harmed by the acts of some third party, the only feasible way to compensate the co-trustees and avoid a double recovery or unjust enrichment to one trustee at the expense of another is to award damages in the ratio or percentage of actual management and control that is exercised by each of the various co-trustees. The fact that a statute or treaty gives primary authority to one agency (Migratory Bird Act to Federal Government) does not prevent that agency from delegating, in fact, the oversight and management to another agency (the State). It is what is done in practice, not the underlying “statutory authority,” that the Courts must look to. To hold otherwise gives validity to Defendants’ argument that the Government was in privy with the State of Idaho when the Defendants settled with the State of Idaho and the federal government would be bound by the same. If the Court looks to the actual control and management of the natural resource the problems are avoided and the recovery, if any, is based on the merits of each of the trustees’ cases. In this way, the federal government and the Tribe are not limited or bound by what the State of Idaho may have chosen to settle for as damages, but they cannot recover a greater percentage than what this Court determines their actual control and management were in fact. If there is a windfall to the Defendants, only the State of Idaho can complain. The State of Idaho may argue, however, that the settlement saved the State of Idaho the cost of litigating their claim. If the Defendants could not rely on the percentages established by the Court or were subject to the full amount established in this case, even though the federal government and the Tribe exercised less than 50% of the control and management of certain resources, settlement would be discouraged and the recovery to natural resources would be delayed. The Court does not find the Tribe’s argument that the natural resources “appertain to” the Tribe to be persuasive. While the Tribe may use certain natural resources in the exercise of their cultural activities, such use does not rise to the level of making a natural resource “belong or be connected as a rightful part or attribute” for purposes of trusteeship analysis. The same conclusion is reached on the United States’ argument that natural resources appertain to the Trustees for all resources on, under, over or associated with federal or tribal owned or administered land. This simple argument is too broad and ignores the management and control of the same natural resources by the State of Idaho or private landowners. CERCLA is a broad remedial statute, but the statute itself creates reasonable limits on trusteeship that this Court will enforce. As to water in the Basin, the federal government has jurisdiction over the “navigable waters” pursuant to the Clean Water Act. “Navigable waters” is defined as “waters of the United States.” 33 U.S.C. § 1362(7). This Court has previously ruled in another case that the Spokane River, Lake Coeur d’Alene, and relevant portions of the Coeur d’Alene River and St. Joe Rivers that flow into Lake Coeur d’Alene are “navigable waters.” “The EPA has interpreted ‘waters of the United States’ to include ‘intrastate lakes, rivers, streams (including intermittent streams) .. .the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce.’ and ‘tributaries of [those] waters.’ 40 C.F.R. § 122.2(c), (e).” Headwaters, Inc. v. Talent Irrigation District, 243 F.3d 526 (9th Cir.2001). Non-navigable tributaries flowing into navigable streams are “waters of the United States.” United States v. TGR Corp., 171 F.3d 762, 764 (2d Cir.1999) and cited as authority by the Ninth Circuit in Headwaters. Accordingly, there is no doubt that the federal government has jurisdiction over the waters at issue in this case. The evidence submitted during the court trial involved opinions that the federal government was or was not managing or controlling a natural resource. As indicated above, the Court does not find that this all or nothing approach to trusteeship is correct. Water, wildlife, fish, birds, and biota do not stay in one place. Therefore, it is reasonable under the terms of the statute to allocate a stewardship percentage to each trustee in order to adequately compensate multiple trustees for damage to natural resources. Accordingly, during the second phase of this trial, the Court will allow the parties to submit evidence to aid the Court in determining the percentages of trusteeship over certain resources: fish, wildlife, biota, water and groundwater. The Court does find that the federal government is a trustee over 100% of federal lands in the Basin and the Tribe is trustee over 100% of the lands within the reservation boundaries. The State of Idaho is trustee over 100% of the state-owned land. Neither the United States or the Tribe are trustees over land owned by private citizens. G. Res Judicata Defendants argue that the claims of United States are barred by res judicata because the State of Idaho was in privity with the United States when it entered into a settlement agreement with the Defendants for natural resource damages. The United States argues it was aware of the settlement, but was not in privity with the State of Idaho and is not bound by the terms of the settlement agreement. The Court agrees with the United States. Although the literal definition of the term “res judicata” is expansive enough to cover both preclusion of relitigation of the same cause of action and relitigation of the same issue, the modern tendency is to refer to the aspect of the doctrine that precludes relitigation of the same issue in a separate cause of action as “collateral estoppel,” and to refer to that aspect preventing relitigation of the same cause of action as “res judicata.” Rodriguez v. Department of Correction, 136 Idaho 90, 92, 29 P.3d 401 ( 2001) (citing 46 Am.Jur.2d Judgments § 516 (1994)). Res Judicata thus applies to protect litigants from the burden of litigating the same cause of action with the same party or its privity. Hindmarsh v. Mock, 138 Idaho 92, 94, 57 P.3d 803 (2002). It is well-settled that in order for res judicata to bar litigation, the following requirements must be met: (1) the same claim or cause of action arising out of the same facts must be involved in both suits; (2) there must be a final judgment on the merits in the prior action; and (3) the parties in the instant action must be the same as or in privity with the parties in the prior action in question. Id.; Park-lane Hosiery Co. v. Shore, 439 U.S. 322, 326-27 n. 5, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979); Restatement (Second) of Judgments § 19. The purposes of these judicially created rules are to conserve judicial resources, protect litigants from multiple lawsuits, and foster certainty and reliance in legal relations. Montana v. United States, 440 U.S. 147, 153-54, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979). In the present case, the claim for natural resource damages under CERCLA is the same as in the state cause of action. There was a final judgment when the parties reached a settlement of the claims. The question then becomes was there privity between the State of Idaho and the United States. In Tahoe Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 322 F.3d 1064, 1081-82 (9th Cir.2003) the court set forth a concise summary of when privity exists. Even when the parties are not identical, privity may exist if “there is ‘substantial identity’ between parties, that is, when there is sufficient commonality of interest.” In re Gottheiner, 703 F.2d 1136, 1140 (9th Cir.1983) (citation omitted); see also Stratosphere Litigation, 298 F.3d at 1142 n. 3 (finding privity when a party is “so identified in interest with a party to former litigation that he represents precisely the same right in respect to the subject matter involved”) (citation omitted); Shaw v. Hahn, 56 F.3d 1128, 1131-32 (9th Cir.1995) (finding privity when the interests of the party in the subsequent action were shared with and adequately represented by the party in the former action); United States v. ITT Rayonier, Inc., 627 F.2d 996, 1003 (9th Cir.1980) (“[A] ‘privy’ may include those whose interests are represented by one with authority to do so.”). We made clear, in In re Schimmels, that privity is a flexible concept dependent on the particular relationship between the parties in each individual set of cases: Federal courts have deemed several relationships “sufficiently close” to justify a finding of “privity” and, therefore, preclusion under the doctrine of res ju-dicata: “First, a non-party who has succeeded to a party’s interest in property is bound by any prior judgment against the party. Second, a non-party who controlled the original suit will be bound by the resulting judgment. Third, federal courts will bind a non-party whose interests were represented adequately by a party in the original suit.” In addition, “privity” has been found where there is a “substantial identity” between the party and nonparty, where the non-party “had a significant interest and participated in the prior action,” and where the interests of the nonparty and party are “so closely aligned as to be virtually representative.” Finally, a relationship of privity can be said to exist when there is an “express or implied legal relationship by which parties to the first suit are accountable to non-parties who file a subsequent suit with identical issues.” Schimmels, 127 F.3d at 881 (citations omitted); see also Richards v. Jefferson County, 517 U.S. 793, 798, 116 S.Ct. 1761,135 L.Ed.2d 76 (1996) ( “Moreover, although there are clearly constitutional limits on the ‘privity’ exception, the term ‘privity’ is now used to describe various relationships between litigants that would not have come within the traditional definition of that term.”); Alpert’s Newspaper Delivery Inc. v. N.Y. Times Co., 876 F.2d 266, 270 (2d Cir.1989) (“The issue is one of substance rather than the names in the caption of the case; the inquiry is not limited to a traditional privity analysis.”); ITT Ray-onier, 627 F.2d at 1003 (“Courts are no longer bound by rigid definitions of parties or their privies for purposes of applying collateral estoppel or res judica-ta.”). As generally discussed above, the trusteeship must be divided based on actual management and control. Having made this division of stewardship, the Court also finds that Trustees were not in privity with the State of Idaho when the State entered its settlement for natural resource damage. This conclusion is supported by the record that the United States and Tribe were not parties to the state settlement. While it is undisputed the United States was consulted regarding the settlement, it is clear from the face of the sett