Trustees and Trusteeship

Who are Natural Resource Trustees?

The statutory framework of CERCLA and OPA provide natural resource trustees with an enforcement mechanism for obtaining monetary damages as compensation for natural resource injuries.   The President has designated public officials to act on behalf of the public as trustees for natural resources in the National Contingency Plan, 40 CFR Part 300.

To correctly identify the trustees for the natural resources injured by a spill or release, it is important to take note of the location and type of the injured resources.

Federal Agencies

Federal natural resource trustees are designated in the National Contingency Plan at 40 CFR § 300.600.

The Secretary of the Interior:

The Secretary of the Interior shall act as trustee of those resources subject to the management or control of the DOI.

Examples of the Secretary of the Interior’s trusteeship includes the following natural resources and their supporting ecosystems: migratory birds; anadromous fish; endangered species and marine mammals; federally owned minerals; certain federally managed water resources; and land’s managed by the Department including National Parks, National Wildlife Refuges, and BLM and BOR lands. The Secretary of the Interior shall also be trustee for those natural resources for which an Indian tribe would otherwise act as trustee in those cases where the United States acts on behalf of the Indian tribe.

The Secretary of Commerce:

The Secretary of Commerce shall act as trustees of those resources subject to the management or control of the Department of Commerce (DOC) and for natural resources managed or controlled by other federal agencies and that are found in, under, or using waters navigable by deep draft vessels, tidally influenced waters, or waters of the contiguous zone, the exclusive economic zone, and the outer continental shelf.

Examples of the Secretary of Commerce’s trusteeship include the following natural resources and their supporting ecosystems: marine fishery resources; anadromous fish; endangered species and marine mammals; and the resources of National Marine Sanctuaries and National Estuarine Research Reserves. The Secretary of Commerce has delegated trustee authority to the National Oceanic and Atmospheric Administration (NOAA).

Secretary for land managing agencies:

This will include the Secretaries of Interior, Commerce, Agriculture, Defense and Energy as land managing agencies for natural resources located on, over, or under land administered by the United States. The trustee shall be the head of the department in which the land managing agency is found.

Head of authorized agencies:

For natural resources located in the United States but not otherwise described in this section, the trustee shall be the head of the federal agency or agencies authorized to manage or control those resources.

State Agencies

State natural resource trustees are designated in the National Contingency Plan at 40 CFR § 300.605.

The Governor of each State shall designate officials to act as trustee for natural resources within the State’s boundaries or for resources belonging to, controlled by, or appertaining to the State. The designated official is normally the head of an agency responsible for environmental protection or fish and wildlife management. States may designate more than one trustee agency.

Indian Tribes

Tribal natural resource trustees are designated in the National Contingency Plan at 40 CFR § 300.610.

The tribal chairman, head of the tribe's governing body, or an individual selected by the tribe shall act as trustee for natural resources belonging to, managed by, controlled by, appertaining to, or held in trust for the benefit of a tribe. A tribal chairman or head of the tribal governing body may also designate another person to act as trustee on the tribe’s behalf.

The Secretary of the Interior may act as trustee if requested by the tribe.

Foreign Trustees

Under OPA, foreign trustees act on behalf of a foreign government as trustees for natural resources belonging to, managed by, controlled by, or appertaining to such foreign government. (See 40 CFR 300.612)

Co-Trusteeship

Natural resource trusteeship may be shared between Federal and State Agencies and Indian Tribes. When the natural resources are shared, the agencies and/or tribes may act as co-trustees for asserting a natural resource damage claim and for implementing the restoration of the natural resources.

Co-trustees should coordinate and cooperate in carrying out their trusteeship responsibilities. (See 40 CFR 300.615(a))

Co-trustee relationship examples:

• Migratory birds: may be a resource for both the DOI and the states
• Sea turtles: trust responsibility of DOC in water and DOI on land, and states are co-trustees with both DOI and DOC for sea turtles at sea and on land
• Fish: fish may be a resource for both the DOI and the states
• Tribal reservation lands: both the DOI and the tribe are co-trustees

Major Concepts in NRDAR