In re the Exxon Valdez Alaska Native Class v. Exxon Corp.: cultural resources, subsistence living, and the special injury rule.

I. INTRODUCTION

This Chapter takes a close look at the Ninth Circuit's recent decision in the case In re the Exxon Valdez Alaska Native Class v. Exxon Corp. (In re the Exxon Valdez).(1) The court dismissed the class action filed by a group of Alaska Natives who alleged damage to their subsistence way of life.(2) According to the Ninth Circuit, the damages they claimed did not meet the requirements of the special injury rule.(3) Part II of this Chapter gives a detailed analysis of the facts of the case and the reasoning of the Ninth Circuit. A firm understanding of the special injury rule is necessary to analyze the reasoning of the court and the significance of the court's decision. Accordingly, Part III of this Chapter examines the development of the special injury rule and clarifies its current legal status. Part IV examines cultural resources and the subsistence way of life and assesses their viability as a "special" injury.

II. THE NINTH CIRCUIT DECISION

This Chapter discusses one of the latest decisions in the ongoing saga(4) resulting from the grounding of the Exxon Valdez in Prince William Sound, Alaska in 1989.(5) In re the Exxon Valdez involved a class of Alaska Natives (Class) who sued Exxon Shipping Company and Exxon Corporation (collectively Exxon), alleging the massive oil spill damaged their subsistence way of life.(6) This action was separate from any claimed economic injury(7) and the court found for the defendant, Exxon.(8)

A. Facts

On March 24, 1989 the Exxon Valdez ran aground in Prince William Sound, Alaska. The resulting oil spill dumped eleven million gallons of oil and blackened 2592 miles of beaches(9) By September 1989, Exxon faced over 153 lawsuits, including 58 class actions, and one Anchorage attorney estimated that by the end of the year, Exxon could face as many as 1500 individual suits. 10 By that same time period, Exxon had already paid more than $91 million to fishermen and others who lost income, and Exxon had spent more than $1 billion on cleanup.(11) Early estimates of cleanup costs Were conservatively placed at more than $2 billion.(12)

The plaintiffs in In re the Exxon Valdez constituted a class consisting of "all Alaska Natives and Native organizations including but not limited to, individuals, Native villages, incorporated and unincorporated Native entities and associations and tribal entities, who engage in, rely upon, promote or preserve, wholly or in part, a subsistence way of life."(13) Later modifications to the class definition excluded all Native villages and government entities and limited the claim to 3455 individual Alaska Natives. In addition to claimed damage to a subsistence way of life,(14) the complaint alleged injury to archaeological sites and artifacts, natural resources, and property upon which the plaintiffs depend as part of their natural habitat and lives.(15)

The cause of action was originally brought in state court and was later removed.(16) After removal, the plaintiffs separated their action into two parts: one for economic damages due to loss of harvest, and one for noneconomic damages due to alleged injury to the plaintiffs' subsistence way of life.(17) The claim for harvest loss was settled,(18) and upon request by the parties, the court issued an order directing final judgment(19) and granting Exxon's motion for summary judgment on all noneconomic injury claims asserted by the Class.(20)

B. Reasoning of the Ninth Circuit

The Alaska Natives brought their action under a maritime public nuisance claim.(21) The court held, and the Class stipulated, that the claim was subject to provisions of the Restatement of Torts regarding allowance of recovery for public nuisance.(22) The court defined the issue as whether cultural damage (damage to the subsistence way of life employed by the Class members) constituted compensable injury.(23) The court viewed the Class as attempting to add an economic character to its claim.(24) Because the parties settled the economic claims, the court strictly limited the claims to those it considered purely noneconomic.(25)

The court focused on the effect the oil spill had on the communal life of the Alaska Natives.(26) In the view of the court, the damage suffered by the Alaska Natives varied only in magnitude from that suffered by all Alaskans.(27) Although the Alaska Natives may have suffered to a greater degree than others, such a difference in degree is not enough to constitute a special injury as required to permit a private action for a public nuisance.(28) In determining that the difference was in degree and not in kind,(29) the court found guidance in the Alaska Constitution(30) and applicable case law,(31) which gave all Alaskans the right to enjoy a subsistence way of life.(32) Accordingly, all Alaskans share a common right to "obtain and share wild food, enjoy uncontaminated nature, and cultivate traditional, cultural, spiritual, and psychological benefits in pristine natural surroundings."(33) The court also rejected the need to examine the strict liability provisions of the Alaska Environmental Conservation Act,(34) claiming that the relevant statutory provisions only applied to losses of economic benefits and were inapplicable to the case at hand.(35)

III. THE SPECIAL INJURY RULE

The net result of the special injury rule is that the common law has been very slow to recognize the right of a private person to maintain actions based on public nuisance.(36) Accordingly, when there are large environmental disasters, such as the Exxon Valdez oil spill, individuals may not sue for damages resulting from the public nuisance without showing special injury. A brief study of the background of public nuisance actions and the special injury rule emphasizes the rationale for reliance on the rule in the past and the justifications courts would have for abandoning it in the future.

A. Public Nuisance and the Origin of the Special Injury Rule

1. Distinguishing Public Nuisance

"Nuisance" is the French word for harm(37) Nuisance is "an interference with the use or enjoyment of land, or with a right of easement or servitude over the land."(38) There are private nuisances and public nuisances. Both are fields of tort liability, but it is only by an accident of historical development that they share the common name "nuisance."(39) While private nuisance is narrowly restricted to interference with interests in the use or enjoyment of private land, public nuisance is a "catch-all low-grade criminal offense" that involves interference with rights belonging to the entire community.(40) Public and private nuisances are no more related than any other two tort liabilities.(41) Whatever confusion existed between the two torts because of their similar names became even more troublesome once courts allowed private individuals to maintain actions for a public nuisance if they showed a special injury.(42) Public nuisance and private nuisance should be considered mutually exclusive areas of law. In this Chapter, only public nuisance is of concern.(43)

Public nuisance includes interference with public health,(44) safety,(45) morals,(46) peace,(47) comfort,(48) and convenience(49) However, other offenses may also be considered.(50) The common thread is that all of these actions affect a common right shared by the general public.(51) Historic examples of actions that did not constitute a public nuisance include blocking access to a stream that could not be used anyway, frightening an unduly skittish horse, a door that only rarely opened onto a sidewalk, infrequently falling ice and snow from a building or structure, and a single call by a Jehovah's Witness.(52)

2. Background and Development of Public Nuisance Torts and Special Injury Requirements

The law provides various solutions for those trying to assert the public's interest in environmental quality.(53) However, those who turned to public nuisance law found it a very confusing subject at times.(54) The historic English definition of common nuisance included "any act not warranted by law or an omission to discharge a legal duty, which inconveniences the public in the exercise of rights common to all Her Majesty's subjects."(55) Until 1536, private actions for public nuisance were disallowed on the grounds that only the king could have a remedy for a crime.(56) For the first few centuries, public nuisance retained its status as a pure crime.(57)

Eventually, public nuisance began to mesh with the concept of tort.(58) The first case to break away from the concept of allowing only the king to sue for public nuisance occurred in 1536.(59) That case stated that only the king could punish a common nuisance unless "one man has greater hurt or inconvenience than any other man had, and then he who had more displeasure or hurt, etc., can have an action to recover his damages that he had by reason of this special hurt."(60) This marked the humble beginning of the special injury rule.(61)

The word "special" does not refer to any particular or specific type of damage, but rather to damage of any type or kind so long as it is unique to the plaintiff.(62) As a threshold, the alleged damage must be sufficiently substantial so as to be actionable.(63) Once the nuisance is actionable by a private litigant, the liability for creating the public nuisance can be based on intent, negligence, or even strict liability.(64)

3. The American Law Institute's Restatement (SECOND) of Torts

The American Law Institute (ALI) has worked on the concept of nuisance actions under tort law for some time. ALI developed at least eighteen drafts in preparing the current version of the Restatement of Torts.(65) Tentative Draft 17 of the Restatement expanded the definition of public nuisance.(66) In addition, Tentative Draft 17 was environmentally progressive.(67) With further revisions, the Restatement breathed "new life into private actions for public nuisance."(68) Notable improvements include the movement away from the special injury rule toward a liberal standing doctrine in actions brought for equitable remedies,(69) and the incorporation of a broader definition of what constitutes an "unreasonable interference."(70) The current version of the Restatement, which defines who may recover for a public nuisance, reads as follows:

   1) In order to recover damages in an individual action for a public
   nuisance, one must have suffered harm of a kind different from that
   suffered by other members of the public exercising the right common to the
   general public that was the subject of interference.

   2) In order to maintain a proceeding to enjoin [or] abate a public
   nuisance, one must

      a) have the right to recover damages, as indicated in Subsection (1), or

      b) have authority as a public official or public agency to represent the
      state or a political subdivision in the matter, or

      c) have standing to sue as a representative of the general public, as a
      citizen in a citizen's action or as a member of a class in a class
      action.(71)

While the Restatement retains the definition of a public nuisance as an "unreasonable interference with a right common to the general public,"(72) it carefully states that a nuisance is simply a condition, and does not, by nature of its existence, necessarily connote liability in tort.(73) Furthermore, while the Restatement maintains the special injury rule for actions seeking damages,(74) it abandons the special injury rule for actions brought in equity.(75) These changes in the Restatement create the potential to transform the public nuisance doctrine into an important tool for environmental protection.(76)

4. Distinguishing Between Different in Kind and Different in Degree

The special injury rule requires that the plaintiff's injury be different in kind than that suffered by the public generally.(77) Difference in degree is not enough.(78) There are two justifications given for maintaining the distinction between differences in degree and differences in kind. First, it is too difficult to draw a line between what is and is not a sufficient degree of injury.(79) Second, disallowing an action based on a difference in degree prevents a multiplicity of suits.(80)

Despite difficulties with the special injury rule, courts have insisted on its application.(81) If a difference in kind is not readily apparent, it has "almost invariably been said that degree is not enough."(82) Although the difference in kind requirement is designed to provide a clear line to follow, application of the principle shows that the line is not always readily identifiable. It is often very difficult to separate the concepts of kind and degree.(83) Further complicating matters is the fact that degree is a relevant factor to consider.(84) Accordingly, the special injury rule, although meant to be a bright-line rule, is often a difficult test to apply. Because of the potential for confusion in applying the special injury rule, it is worthwhile to examine the justifications for the special injury rule in order to determine if it should still exist.

B. Critique of the Special Injury Rule

1. Justifications and Criticisms

The special injury rule has been called the greatest hurdle facing private plaintiffs suing for a public nuisance.(85) The rule derives from a need to address traditional standing considerations, such as multiplicity of suits and lack of concrete adversity.(86) Multiplicity concerns presume that it is unduly burdensome or constitutes harassment to subject the defendant to multiple suits.(87) The requirement of concrete adversity historically was met by preventing a person from vindicating rights in the province of the sovereign.(88) However, as applied in a mass tort context, the requirement of concrete adversity more correctly presumes that if many people are affected, the injury to one individual is likely minor, petty, or trivial.(89)

The major justifications for the special injury rule can be summarized as follows: 1) only the sovereign should maintain actions for injury suffered by the public, 2) courts should protect defendants from an overwhelming number of actions by private parties and from potential harassment, and 3) courts should not be burdened with numerous suits for only trivial damages.(90) Early public nuisance tort law was hampered by the limitations imposed by the special injury rule as well as the courts' initial requirement of a criminal element.(91) Problems with the special injury rule soon became manifest.

One of the biggest problems plaguing the special injury rule is that it is often very difficult to make a distinction between degree and kind.(92) Another disadvantage is that implementation of the special injury rule does not fully allow for the internalization of costs by polluters.(93) It is often argued that the equitable consideration of spreading costs should be a factor in considering polluter liability in public nuisances. The concept of internalizing costs suggests that "tortfeasors who impose their externalities[94] on society should not be shielded from liability by the special injury rule."(95) Proponents of the theory of internalizing costs(96) suggest that the courts should not hesitate to award damages against polluters.(97)

Justification for the special injury rule based on the desire to prevent a multiplicity of suits is also questionable in today's legal structure. Multiplicity of suits can be discouraged by general requirements of standing in addition to the procedural mechanisms of class actions.(98) The benefit of class actions in preventing a multiplicity of suits can be viewed through a comparison of public nuisance actions to other toxic or mass tort actions or catastrophic events such as airplane crashes, hotel fires, and asbestos discoveries.(99) Courts have become accustomed to dealing with a large number of plaintiffs in cases such as these and have developed procedures to handle the claims in a fair and expeditious manner.(100) Class actions allow more individuals access to court while contemporaneously diminishing the aggregate number of suits and diminishing the harassing or burdensome nature of such suits on the defendant.(101)

The Restatement of Torts treats public nuisances in a bifurcated manner according to the type of remedy sought. The Restatement allows separate consideration for actions in equity, which do not have a special injury requirement, and those for damages, which do have a special injury requirement.(102) The reason articulated for maintaining the bifurcated standard is that actions in equity are less likely to involve a multiplicity of suits.(103) This justification is based on the premise that a potential defendant only needs to be enjoined once to prevent a particular nuisance. However, a citizen has standing to bring an action to enjoin or abate a public nuisance when she is a member of a class suing for damages.(104) Once a class has been properly certified,(105) and all potential members of the class have been provided notice, the fear of a multiplicity of suits greatly diminishes.(106) The reason for distinguishing between causes of action for equity and those for damages is not entirely clear.(107) Furthermore, the certification of a class action is only one of several procedural methods a judge can employ in order to safeguard a defendant from a potentially harassing multiplicity of suits.(108)

There are several reasons to abandon the distinction between suits in equity and those for damages, thus allowing actions for damages without a showing of special injury. One of the biggest reasons is that private actions complement those actions brought by public officials. Public officials often lack the resources to bring an action for public nuisance.(109) Also, inertia, political pressures, or vested interests in the nuisance frequently inhibit many public officials.(110) Accordingly, they cannot always be relied upon to seek adequate redress for a community.(111)

The President's Council on Environmental Quality (CEQ) has openly recognized citizen suits as a valuable resource in supplementing efforts of public officials.(112) Allowing private actions for public nuisances would also allow a more varied array of suits because people value resources differently. If opposing parties value a damaged resource differently, the court, and not the special injury rule, should determine whose perception is valid. Individuals must have an opportunity to bring their claim to court. As the law currently stands, plaintiffs alleging that their damages are unique due to the special value they attribute to the damaged resource still cannot have their claim litigated. The courts will deny their claim because the special injury rule prevents claims by people who suffer the same damage as everyone else, even though these people experience a greater loss due to their unique appreciation for the damaged resource.(113) Such a rule inhibits the evolution of public nuisance law by eliminating a significant forum through which new societal values may be expressed.

In today's society, maintaining the special injury rule does not make as much sense as it did when it was developed.(114) Concerns at the time of the rule's development (for example, a horse falling into a ditch) are vastly different than current fears regarding accidents at chemical plants, oil spills, and releases of toxic substances.(115) Rejecting old policy rationales allows courts to accommodate modern policy values such as concerns about environmental contamination or the desire to protect the subsistence way of life for people such as the Alaska Natives. The special injury rule is counterproductive to the evolution of public nuisance law. "It is an illogical and dangerous policy to retain a rule that produces less liability as the interference becomes greater.(116) Rigid adherence to the special injury rule runs the risk of stifling protection for newly appreciated values and resources.

2. The Future of the Special Injury Rule

If plaintiffs are barred at the courthouse doors by an outdated special injury rule, public nuisance claims can never serve the purposes of filling statutory gaps or helping establish standards of reasonable conduct.(117) Allowing private citizens access to courts guards the interest by allowing citizens to sue on matters of public concern that specifically affect them.(118) A plaintiff who is given a choice between a federal citizen suit and a state common law action for relief is really presented with no more than a Hobson's choice.(119) The potential plaintiff will want to pursue damages under state tort law and ignore the broader public interest. If circumstances permit, private plaintiffs should combine citizen suits and supplementary state law claims for relief. Such a combination would facilitate protection of both public and private interests.(120)

There are three main reasons public nuisance claims are important to private plaintiffs.(121) First, citizen suit provisions in many environmental statutes often only allow remedies that require an agency to enforce regulatory compliance but do not allow recovery of damages.(122) Second, regulatory agencies can enjoin a nuisance, but often lack the power to fashion an affirmative remedy for injured plaintiffs.(123) Lastly, public nuisance is a condition occasioned by the defendant, not a specific action.(124) Although Congress has been slow to recognize the right of a citizen to sue for natural resources damage,(125) actions for public nuisance would "fill in the cracks in the statutory framework.(126) The actions that may give rise to a public nuisance are varied and therefore an equally varied array of activities that damage the environment may be challenged. Public nuisance claims also attack the merits of a case(127) and are not limited to procedural challenges, as are environmental statutes like NEPA.(128)

In his early treatment of the subject of public nuisance, William Prosser(129) did not consider the possibility of public nuisance law and the special injury rule evolving with time.(130) Abandoning their 16th century roots, public nuisance actions have the ability to develop into a very powerful common-law tool, able to fill gaps left by environmental statutes.

3. The Option of an Evolving Special Injury Rule

The problems with the special injury rule are manifold. One of the biggest problems is that the rigidity of the special injury rule does not allow plaintiffs to challenge modern activities that often have catastrophic results. The concerns are becoming quite evident:

   In this modem age where better living through chemicals conflicts with
   growing environmental awareness, ... when the wreck of an oil tanker can
   foul hundreds of square miles of delicate ecosystems ... absent an
   overriding public policy to the contrary, it is only fair to allow private
   actions for public nuisance in order to provide a plaintiff a means of
   access to the only forum that can provide him with an appropriate
   remedy.(131)

Other than the benefits provided by having a bright-line rule, there are few compelling reasons for preserving the special injury rule. A parallel example to the special injury rule is found in products liability jurisprudence.(132) Originally consisting of criminal statutes, products liability law is now almost entirely comprised of actions for tort remedies. Although evolution of the special injury rule continues to be a slow process, some courts are beginning to progress towards an injury in fact standard. The injury in fact analysis requires abandoning the special injury rule and limiting relief by requiring that the defendant's actions are the proximate cause of the plaintiffs injuries(133) (rather than by barring access to the court altogether when the special injury rule is not satisfied).

In the early 1970s, legal commentators began to realize the potential for public nuisance standing to become increasingly determined by general principles of standing applicable elsewhere in the law.(134) Although such progressive steps have not been widely implemented, the Restatement of Torts is written to favor such an evolutionary approach to public nuisance standing and the special injury rule. The Restatement of Torts wholly encourages courts to embrace developments regarding standing and not to be restricted by a categorical or traditional special injury rule.(135) The topic of evolving away from the special injury rule or abandoning it altogether already has been addressed in several articles.(136) The remaining parts of this Chapter analyze the Ninth Circuit's application of the traditional special injury rule to the facts in In re the Exxon Valdez(137) and determine how cultural resources should be valued under a special injury rule analysis.

C. Application of the Special Injury Rule

The Ninth Circuit dismissed the Alaska Natives' claims of damage to a subsistence way of life because they did not meet the requirements of the special injury rule. Unfortunately, as some commentators have observed, there is no truly satisfying method to explain which actions incur liability for a public nuisance.(138) Accordingly, facts are considered on a case-by-case basis. The special injury rule generally provides that if an entire community has been harmed in the same manner by a public nuisance, public officials are the only proper parties to seek redress.(139) However, just because several people are hurt in an identical manner, they are not precluded from bringing an action. For example, a class (even a considerably large class) of persons can bring an action. It is only when the class becomes so large and general as to include all members of the public at large who come in contact with the nuisance, that the action should be denied.(140) In fact, the Restatement of Torts requires that interference must be with a public right (one common to all members of the public) in order to be considered a public nuisance.(141) Accordingly, the mere fact that the nuisance affects many people serves as a requisite to meeting the definition of "public nuisance." It should not serve as a bar to an otherwise appropriate action for redress.

1. Types of Actions Cognizable Under Public Nuisance

Although determination of actions cognizable under public nuisance largely has been on a case-by-case basis, certain trends have become apparent. If a public nuisance causes physical injury to the plaintiff, then the plaintiff may recover.(142) Similarly, actions for pecuniary loss are considered "special" enough for the special injury rule. For example, courts have allowed recovery for businesses that have made special, commercial use of a public right.(143) In particular, commercial fisheries making a localized use of public waters have been allowed to recover for their "special injuries.(144)

Courts have also afforded special injury status to public nuisances that have interfered with fights in land. Special injury has been established if the nuisance interferes with the plaintiff's use or enjoyment of her land.(145) Similarly, interference with rights in land may lead to a special injury if the public nuisance causes substantial depreciation in the value of the land.(146)

If a plaintiff has been prevented from performing under a particular contract, courts have considered the resulting injury to be special injury, unless the pecuniary loss is common to the entire community.(147) An Oregon court even found special injury when obscene words were spoken in public but directed at the plaintiff.(148) In that case, the resulting mental distress was a special injury for which redress could be sought under public nuisance law.

2. Departures from the Requirement of the Traditional Special Injury Rule

The grandfather case to public nuisance law and the special injury rule is Robins Dry Dock & Repair Co. v. Flint.(149) Decided in 1927, this succinct opinion by Justice Holmes held that, in maritime settings, an injured person must have suffered direct physical harm to recover economic losses.(150) Robins Dry Dock involved a libel action by a time charter of a steam ship for loss of the ship's services when the propeller was greatly damaged while the ship was docked. The time charter did not have a cause of action because the injury to the propeller of the ship was not an injury to them. It was only an injury to the owners of the boat.(151)

Although Robins Dry Dock established the special injury rule under public nuisance law, courts have begun to carve narrow exceptions to the rule. For example, in Burgess v. M/V Tamano,(152) the court employed a proximate cause/foreseeability analysis(153) and did not use a strict application of the special injury rule. Burgess involved the release of about 100,000 gallons of oil into the waters of Casco Bay. Under Burgess, fishermen and clam diggers were allowed recovery, but businessmen, who claimed a loss of customers indirectly resulting from pollution of the water, were not allowed recovery.(154) However, the Burgess court's deviation from the special injury rule was not explicit. While the court applied terminology indicating a traditional special injury rule approach,(155) it actually focused on the directness of the plaintiffs injury to the pollution of the bay.(156) Accordingly, the court relied upon proximate cause.

Other decisions were more explicit in their departure from the special injury rule. For example, in Pruitt v. Allied Chemical Corp.,(157) an action was brought against a chemical company for the pollution of a river and bay with the chemical agent kepone.(158) In allowing recovery to individuals such as commercial fishermen; boat, tackle, and bait shop owners; and marina owners who suffered losses in sales, the court focused on the foreseeability of the result and whether the damages were directly caused by the defendant (i.e., proximate cause).(159) Several other cases have similarly applied what amounts to more of a foreseeability/proximate cause standard in place of the traditional special injury rule.(160)

Many jurisdictions have fashioned a rule to allow commercial fishermen to recover losses without showing a special injury. This now forms a special, yet limited, exemption to the rule set forth in Robins Dry Dock. The Fourth,(161) Fifth,(162) Ninth,(163) and Eleventh(164) Circuits have all recognized a fishermen exemption to the Robins Dry Dock rule.(165) Of particular interest is the adoption of the rule by the Ninth Circuit.

Originally, Ninth Circuit public nuisance law was governed by the case Borcich v. Ancich,(166) which held that the decision in Robins Dry Dock prevented recovery by fishermen unless they could show injury to a proprietary interest. Two years later, the Ninth Circuit decided Carbone v. Ursich.(167) Carbone overruled Borcich and allowed fishermen to recover damages resulting from the negligent infliction of damage to their fishing nets.(168) With Carbone as a springboard, in 1974 the Ninth Circuit decided the case Union Oil Co. v. Oppen, which held there was an exception to the Robins Dry Dock rule for commercial fishermen.(169) Oppen was a case resulting from the Santa Barbara oil spill of 1969.(170) The Ninth Circuit affirmed the district judge's holding that "the loss of a prospective economic advantage occasioned by the alleged diminishment of the quantities of available sea life formed a sufficient basis for the recovery under the law of negligence.(171) The Ninth Circuit acknowledged that it did not have any definitive, precedential ruling on the precise issue before it, but that the court was sure it was reaching the proper resolution to the dispute in the pursuit of justice.(172)

The reasoning of the court in Oppen is of particular interest. The court held that the defendant's conduct was negligent because of the likelihood that certain harm would occur.(173) Accordingly, the court set the standard as one of ordinary foreseeability and a duty owed to the commercial fishermen, who were long established in the area.(174) The court, however, limited its ruling to cases involving commercial fishermen suffering economic injury.(175) It is this limitation that prevented the Ninth Circuit from applying a foreseeability/proximate cause analysis to the Alaska Natives in In re the Exxon Valdez.(176) Thus, the Ninth Circuit was consistent with precedent by not abandoning the special injury rule in its entirety or applying a foreseeability/proximate cause test to the Alaska Natives. However, the court passed on a golden opportunity to aid the evolution of public nuisance law. It was creative thinking and attention to justice that permeated the forward-thinking opinion of Oppen and helped establish what, at the time, was an unprecedented rule of law.

IV. DAMAGE TO A SUBSISTENCE WAY OF LIFE AS A SPECIAL INJURY

Although cultural genocide is expressly illegal,(177) and the last massacre of Native Americans occurred at Wounded Knee in 1890, many commentators believe that "deceptions have been perpetrated [against Native Americans] throughout most of the twentieth century."(178) These sentiments are illustrative of the tensions between indigenous people and those in the current mainstream United States. These tensions can be resolved if courts give full credence to the existence and significance of the differences inherent in the lifestyles of the indigenous peoples, such as the Alaska Natives. The Ninth Circuit in In re the Exxon Valdez admitted that the Alaska Natives were hurt to a different degree,(179) but the court stopped short of calling the difference a difference in kind, which would have constituted a special injury.

A. Inherent Tensions

Mass torts are akin to public litigation efforts that involve court ordered restructuring of institutions.(180) In the United States, it is the role of each individual court to provide what is essentially an ad hoc solution to disasters that quite often have social and economic consequences and repercussions on a national scale.(181) The remarks a court makes and the justifications it uses in issuing a decision create a general political or moral atmosphere.(182) It is incumbent upon the judge to maintain an open mind and to render a decision based on a sense of the community,(183) and not on any one particular group.

Judge Holland, who wrote the district court opinion in In re the Exxon Valdez, was careful to point out that the court neither lacked understanding of the Alaska Natives' lifestyle, nor found that cultural considerations were without value to either society or the court.(184) This admission was important because communities in the United States are often made up of a diverse array of individual peoples. Unfortunately, in an adversarial system of justice, it is difficult to forge a win-win resolution(185) to a dispute once it goes to trial. More often than not, one group will come away from the experience feeling a sense of loss or dejection. If the court undertakes to resolve a dispute and adopts a subterfuge that completely favors one side or one belief, the subterfuge must be sufficiently convincing that it can not be exposed as a sham or discredited.(186) Otherwise, the conflict will continue and tensions will build.

If diverse segments of the population within a melting-pot society are to maintain an amicable relationship, neither side of a dispute should feel that its beliefs are wholly rejected. Losers in a lawsuit are not quick to forget their exclusion from society.(187) If a litigant loses a lawsuit based on its belief, the loss is more tolerable if that belief is not considered completely insignificant or valueless.(188) The court is walking a fine line between allowing a defendant to impose a recoverable cost on the plaintiffs beliefs and allowing society to impose on the plaintiffs beliefs in general.(189) Compensation is not adequate for the demoralization caused by the latter. If a belief is declared unrecognized by the law, the believers are often excluded, eliminated, or exiled.(190)

Morals, faiths, and beliefs must be taken into account when making law. If divergent views are ignored, the tendency is to give weight only to the beliefs and ideals of the groups that have traditionally dominated society.(191) When the Ninth Circuit refused to view damage to the subsistence way of life of the Alaska Natives as a special injury, it affirmed the law's position that the Alaska Native subsistence living is not special or unique.(192) However, the Ninth Circuit did realize that the Alaska Natives were hurt to a greater degree than others.(193) The problem was that the strict requirements of the special injury rule bound the court to decide against the native class unless the court was willing to find that the injury was different in kind. Difference in degree is not sufficient.(194) Thus, even if justice would be served by allowing the Alaska Native class to recover, strict application of the special injury rule would not allow recovery. The result is a conflict between justice on one hand, and a strict rule of law on the other. This conflict is avoidable by abandoning the requirement of special injury in favor of a proximate cause/foreseeability approach as argued in Part III.B.3 of this Chapter. Otherwise, the court must decide if the subsistence way of life of the Alaska Natives is either not special, and thus justice requires denying recovery, or it is special and different in kind, and thus justice is served by allowing recovery under the special injury rule.(195)

B. Special Status for Indigeneous Peoples

Although there is a strong argument that Indian tribes have a special status in the United States,(196) there is an equally strong argument that much of the legal power the tribes had in the past has eroded over the years.(197) The Supreme Court has strayed from the notion of Indian tribes as "nations within a nation."(198) Three cases from early in our nation's history show the pains the Supreme Court went through trying to determine the correct treatment for indigenous peoples. First, in 1831, the Supreme Court decided Cherokee Nation v. Georgia.(199) In that case, the Cherokee Nation brought suit to prevent Georgia officials from enforcing state laws within Cherokee Territory.(200) The Supreme Court held that the Cherokees were not a state or nation within the meaning of the Constitution, and, therefore, the laws of the State of Georgia were not applicable.(201) Second, in 1886, the Supreme Court decided the case of United States v. Kagama.(202) In that case, the Court held the laws of the United States were applicable to Indians. In particular, the Court upheld a provision that made it a crime for one Indian to murder another Indian on an Indian reservation.(203)

In 1942 the Supreme Court decided the case of Seminole Nation v. United States.(204) That case involved an action by the Seminole Nation against the United States on claims under Indian treaties and agreements and acts of Congress. The Supreme Court handed down an opinion illustrating and emphasizing the fiduciary duty the federal government has to Indians. The Court used such language as "fiduciary duty of the Government to its Indian wards"(205) and recognition of the "distinctive obligation of trust incumbent upon the Government in its dealings with these dependent and sometimes exploited people."(206) The Court referred to the relationship as "the most exacting fiduciary standards."(207)

The slow and often ambiguous recognition of Indian status is very disheartening for many Indian commentators. These commentators stress that Indians intend to be around for many years as politically separate, self-governing communities and as people.(208) According to those commentators: "America needs its tribal peoples, not just as tragic chapters in American history, but as living communities, vibrant strands in the fabric of the living America-now and in the future."(209) Judicial involvement in Indian affairs needs to consider the various communities reached by the court's decision. Judges should not put aside their empathy. They should consider the plight of minorities and others who are affected by their decisions.(210)

For example, in the early seventies, the Ninth Circuit struck a blow for proponents of Indian rights by declaring the American Antiquities Act of 1906(211) unconstitutionally vague because it did not define words such as "ruin" or "monument."(212) Other circuits, such as the Tenth Circuit, held the exact opposite.(213) In recent years, however, the Ninth Circuit has taken a decidedly more supportive Native American stance and has even been criticized for being too favorable of indigenous peoples at the expense of opposing interest groups.(214)

Indian stories convey a way of thinking that is different from that of most European Americans. For example, Indian stories reveal a triple dependence on the surrounding world: the individual depends on the community, the community depends on nature, and nature depends on the spirit world.(215) Because of this interdependence, items of cultural property or cultural resources are not viewed as isolated items. Instead, they are viewed as a function of all that surrounds them and all upon which they are dependent. This is the concept of "ensoulment."(216) It is through ensoulment that the cultural resource transcends the object itself. A very similar modern-American example would be the Vietnam Memorial.(217) The Memorial has an intrinsically meaningful existence apart from the object itself. It is significant because it is a link to the memories of all those who served and died in Vietnam.(218) Thus, if the Memorial was damaged, it would be more than damage to the physical object. It would offend the memories of those the Memorial was designed to honor. The concept of ensoulment illustrates why damage to the resources supporting a subsistence way of life can be more damaging to Alaska Natives than to someone else who theoretically depends on the resources to a quantitatively equal degree.(219)

Because of the concept of interdependence, subsistence living is a way of life for the Alaska Natives, not just a method of hunting or fishing. Accordingly, the kinship themes that are prominent in the subsistence-based economic system employed by the Alaska Natives are also evident in other institutions of community social organization.(220) For example, native groups often have political institutions with membership that is consistent with primary subsistence production groups.(221) Organization of the subsistence way of life also affects the marriage and residence patterns of individuals.(222) Therefore, without understanding the subsistence-based system of the Alaska Natives, it is impossible to develop a comprehensive view of community social organizations.(223) Accordingly, "it can be anticipated that a disruption of the primary cooperative subsistence-based [life] ... can be expected to impact other features of social organization as well."(224)

C. Statutory Treatment of Alaska Natives

Although some commentators have come to the conclusion that federal laws protecting Indian cultural resources have reached a high water mark,(225) recent legislation offers a glimmer of hope to the future of cultural resources in general and preservation of the subsistence way of life in particular. While statutes such as AIRFA,(226) NAGPRA,(227) and ARPA(228) have been criticized as unwilling to find asserted constitutional rights for plaintiffs,(229) there are several other statutes that have made great strides in affording protection to Alaska Natives and the subsistence way of life. For example, statutes such as the Migratory Bird Treaty Act(230) and the Marine Mammals Protection Act(231) have special provisions treating Alaska Natives as unique. Furthermore, the Oil Pollution Act was conceived almost entirely in response to the Exxon Valdez oil spill disaster.(232)

There are also statutes that are more tailored in scope to fit the needs of Alaska Natives. For example, Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA)(233) provides that "the continuation of the opportunity for subsistence uses by rural residents of Alaska, including both Natives and non-Natives, on the public lands and by Alaska Natives on Native lands is essential to Native physical, economic, traditional, and cultural existence and to non-Native physical, economic, traditional, and social existence."(234) ANILCA also makes the bold assertion that "the situation in Alaska is unique in that, in most cases, no practical alternative means are available to replace the food supplies and other items gathered from fish and wildlife which supply rural residents dependent on subsistence uses."(235) Even the Alaska Constitution attempted to take a fairly proenvironment and pro-Alaska Native step by making the subsistence way of life a constitutional right.(236) The various legislatures have set the tone. It is up to the courts to make sure that the unique quality of the Alaska Natives' subsistence way of life is both fully appreciated and fully protected.

D. Protecting Cultural Resources and the Subsistence Way of Life in the Future

In situations such as the oil spill of the Exxon Valdez, which are dangerous to the environment and people, society must be willing to listen to and act upon information about the ensuing injuries.(237) If the resulting injuries are ignored, society never learns a lesson. Indigenous people often have expressed their ability and willingness to help concerned members of the American society fashion approaches to environmental stewardship that work in the modem world.(238) However, society (and the courts, in particular) must be willing to receive this information. When the legal system does not acknowledge the values or beliefs of a litigant, it undermines those values and beliefs more than necessary and adds undue significance to the litigant's loss.(239)

This is what happened in In re the Exxon Valdez.(240) Precluding the cause of action of the Alaska Native class, based on an application of the special injury rule, sent a message that the courts were not even going to acknowledge the unique nature of the Alaska Natives' subsistence way of life. The better approach is one where the court states that although it values the losing litigant's beliefs, that litigant simply does not prevail on this occasion. This appears to be the statement the district judge in In re the Exxon Valdez tried to make.(241) However, the special injury rule is a bright-line role, and like most bright-line rules, there is only one contemplated, "correct" answer. It is difficult (if not an oxymoron) to have a law that is both simple and fair. A fact situation will fall outside a simple role, and justice will require a result contrary to that dictated by the rule. Once the law adapts to include the exception, in an effort to be fair, it has begun to abandon simplicity. Rigid application of the special injury rule does not allow society to include a highly diverse array of beliefs, morals, or values.

Mass tort cases and large public nuisances have expanded beyond the ability of the common law to fashion remedies that adequately redress the harms they cause.(242) This is especially true in a technologically modern society that refuses to re-examine its adherence to precedent and relatively formalistic bright-line rules such as the special injury rule.(243) Maintaining too conservative a view of who can recover in public nuisance actions has the unfortunate effect of denying effective relief to both the broader community and the more diverse groups within it.(244) Flexibility to adapt to new conditions and unforeseen developments must be supported by rules that have a capacity to change with changing times.(245)

In the American tort system, statistics are an integral part of proving causation and culpability of an individual defendant. This is especially tree when there are multiple defendants.(246) Those who conduct activities that have a statistically identifiable and deleterious effect on the environment or certain groups of people should also follow statistics to allow society to require the internalization of pollution costs. If our society remains dependent on oil, statistically speaking, accidents will happen and oil will be spilled. In such circumstances, damage to the Alaska Natives (and similarly situated subsistence societies) is inevitable. These are foreseeable injuries, and if the defendant is the proximate cause of the injury, then recovery should not be precluded by an outdated and arcane special injury rule. The Ninth Circuit in In re the Exxon Valdez(247) passed on a golden opportunity either to abandon the special injury rule or expand the special injury rule's fishermen exemption to include similarly foreseeable damage to Alaskan Natives practicing a subsistence way of life.(248)

V. CONCLUSION

The special injury rule has proven itself a largely outdated rule. The justifications for keeping the rule are neither particularly persuasive, nor altogether clear. Nevertheless, the special injury rule has not been abandoned in its entirety. To date, there is only one fairly well-recognized exception to the special injury rule, and that is for commercial fishermen. Accordingly, when the Ninth Circuit granted summary judgment for Exxon in In re the Exxon Valdez,(249) it made two affirmative statements. First, it was stating that the subsistence way of life employed by the Alaska Natives was not sufficiently different in kind to support a private action under public nuisance law. Second, the Ninth Circuit was stating that it was unwilling either to expand the commercial fishermen exception to the special injury rule or to abandon the special injury rule entirely. Although these outcomes were ostensibly warranted in the law, they signified a lost opportunity to aid the evolution of public nuisance law by eliminating the arguably arcane special injury rule.

(1) 104 F.3d 1196 (9th Cir. 1997).

(2) The Alaska Natives' complaint alleged injury to the "subsistence way of life, archaeological sites and artifacts ... natural resources and property upon which [the plaintiffs] depend and/or which are part of their natural habitat and lives." In re the Exxon Valdez, 104 F.3d at 1197 (citing Amend. & Consol. Class Action Complaint at 40 (July 17, 1989)).

(3) The special injury rule allows a plaintiff to recover damages resulting from a public nuisance if she has suffered a "particular injury separate and distinct from that suffered by the general public." J.D. LEE & BARRY A. LINDAHL, MODERN TORT LAW, LIABILITY AND LITIGATION [sections] 35.04 (1990).

(4) Some recent examples of cases filed against Exxon include the following: Allen v. Exxon Corp., 102 F.3d 429 (9th Cir. 1996) (holding that the district court did not abuse its discretion in dismissing case with prejudice for failure to make discovery); Chugach Alaska Corp. v. Exxon Corp., 26 F.3d 130 (9th Cir. 1994) (unpublished opinion) (appealing the district court's order certifying a mandatory punitive damages class); In re the Exxon Valdez, No. A89-0095-CV, 1996 WL 384623, at *1 (D. Alaska June 11, 1996) (granting final approval of a plan for allocation of recoveries obtained by plaintiffs); In re the Exxon Valdez, No. A890095-CV, 1995 WL 328493, at *1 (D. Alaska May 16, 1995) (granting Exxon's motion to retain jurisdiction of the direct action cases); In re the Exxon Valdez, No. A89-0095- CV, 1995 WL 527988, at *1 (D. Alaska Jan. 27, 1995) (denying Exxon's motion for judgment on plaintiff's punitive damages claims - Phase III, and denying Exxon's motion for a new trial); In re the Exxon Valdez, No. A89-0095-CV, 1995 WL 527989, at *1 (D. Alaska Jan. 27, 1995) (denying Exxon's motion for judgment on plaintiffs punitive damages claim - Phase I); In re the Exxon Valdez, No. A89-0095-CV, 1995 WL 527990, at *1 (D. Alaska Jan. 27, 1995) (denying motions by Exxon and Captain Hazelwood for new trial on plaintiffs punitive damage claims); In re the Exxon Valdez, No. A89-0095-CV, 1994 WL 182856, at *1 (D. Alaska Mar. 23, 1994) (denying in part, and granting in part, Exxon's motion for summary judgment on Alaska Native Class's claims for noneconomic injury); In re the Exxon Valdez, No. A89-0095CV, 1994 WL 830647, at *1 (D. Alaska Mar. 23, 1994) (denying in part, and granting in part, Exxon's motion for summary judgment on claims by area businesses and municipalities); In re the Exxon Valdez, No. A89-0095-CV, 1994 WL 830648, at *1 (D. Alaska Mar. 23, 1994) (granting Exxon's motion for partial summary judgment on Old Harbor Native Corporation's land exchange claim); In re the Exxon Valdez, No. A89-0095-CV, 1994 WL 830649, at *1 (D. Alaska Jan. 26, 1994) (granting Exxon's motion for summary judgment against seafood wholesaler, processor, cannery employee, and tendered plaintiffs); In re the Exxon Valdez, No. A89-095-CV, 1993 WL 787392, at *1 (D. Alaska Dec. 23, 1993) (granting Exxon's motion for summary judgment with some exceptions); In re the Exxon Valdez, No. A89- 0095-CV, 1993 WL 649103, at *1 (D. Alaska Dec. 8, 1993) (granting joint motion by plaintiff and defendant for an order regarding the impact of settlements on claims by and against the TransAlaska Pipeline Liability Fund); In re the Exxon Valdez, No. A89-0095-CV, 1993 WL 649104, at *1 (D. Alaska Dec. 8, 1993) (granting motion for contribution bar order); In re the Exxon Valdez, No. A89-095-CV, 1993 WL 735036, *1 (D. Alaska Aug. 6, 1993) (regarding plaintiff's motion for reconsideration: ordering that the July 8th judgment was final); In re the Exxon Valdez, No. A89-095-CV, 1993 WL 735037, at *1 (D. Alaska July 8, 1993) (granting defendant's motion to dismiss some of plaintiff's complaints); In re the Exxon Valdez, 767 F. Supp. 1509 (D. Alaska 1991) (denying motion by pipeline company for judgment on pleadings).

(5) The oil spill affected the waters, beaches, and shorelines of Prince William Sound and the Gulf of Alaska. In re the Exxon Valdez, No. A89-0095-CV, 1994 WL 182856, at *3 (D. Alaska, Mar. 23, 1994). By the time this case went to trial, Exxon Corporation had already paid over $1 billion in other related proceedings as both criminal sanctions and civil damages for injury to the environment and natural resources. Id. at *4. The majority of the funds paid by Exxon were placed in trust arrangements that were intended for restoration, rehabilitation, and augmentation of the natural resources in the affected area. Id.

(6) In re the Exxon Valdez Alaska Native Class v. Exxon Corp., 104 F.3d 1196 (9th Cir. 1997).

(7) The Class bifurcated its argument into a claim for cultural damage and a claim for harvest damage. Id. at 1197. The claims for economic damage due to the lost harvest were settled, leaving the court to consider the viability of the Class's cultural-damage claim for the damage to their subsistence lifestyle. Id.

(8) The Ninth Circuit affirmed the District Court for the District of Alaska's grant of Exxon's motion for summary judgment. Id. at 1198.

(9) Michele Galen & Vicky Cahan, Getting Ready for Exxon vs. Practically Everybody, Bus. WK., Sept. 25, 1989, at 190.

(10) Id.

(11) Id.

(12) Don't Quit Now, SAN DINGO UNION & TRIB., Sept. 13, 1989, at B6.

(13) In re the Exxon Valdez, 104 F.3d at 1197.

(14) The subsistence way of life was defined as one that is "dependent upon the preservation of uncontaminated natural resources, marine life and wildlife, and reflects a personal, economic, psychological, social, cultural, communal and religious form of daily living." Id.

(15) Id.

(16) Id.

(17) Id.

(18) Id.

(19) Final judgment was entered pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. FED. R. CIV. P. 54(b) ("Judgment upon Multiple Claims or Involving Multiple Parties"). Id.

(20) Id.

(21) In re the Exxon Valdez, No. A89-0095-CV, 1994 WL 182856, at *1 (D. Alaska Mar. 23, 1994). The complete claim of the Class asserted that its members were entitled to recover based on a wide spectrum of legal options including general maritime law, the common law of Alaska, and the Alaska Environmental Conservation Act (ALASKA STAT. [sections] 46.03.822 (Michie 1996)). In re the Exxon Valdez, 104 F.3d at 1197. The district court stated in dictum that it was dubious of the Alaska Natives' potential for bringing their action under federal common law or maritime law. The district court believed that federal common law would not support a claim for pubic nuisance in a water pollution case, without being preempted by the Federal Water Pollution Control Act (33 U.S.C. [subsections] 1251-1387 (1994)). In re the Exxon Valdez, No. A89-0095-CV, 1994 WL 182856, at *3 (D. Alaska Mar. 23, 1994). Because the Ninth Circuit did not comment on the preemption issue, but rather affirmed the district court based on application of the special injury rule, preemption issues are outside the scope of this Chapter.

(22) In re the Exxon Valdez, 104 F.3d at 1198. The Restatement provides, in pertinent part, that the private individual can recover in tort for a public nuisance only if she has suffered harm of a different kind than that suffered by other persons exercising the same public right. RESTATEMENT (SECOND) OF TORTS [sections] 821C cmt. b (1990).

(23) In re the Exxon Valdez, 104 F.3d at 1198. It should also be noted that the district court held that the Alaska Natives who fished for subsistence were entitled to the benefit of the exception to the special injury rule. Id. at 1197-98.

(24) Id. at 1198. The Ninth Circuit was concerned that the Class was claiming "economically measurable damages" beyond the damage they suffered in their commercial fishing capacity. Id. The Class's actual claim was that the oil spill harmed "an integrated system of communal subsistence ... inextricably bound up not only with the harvesting of natural resources damaged by the spill but also with the exchange, sharing and processing of those resources as the foundation of an established economic, social and religious structure." Id.

(25) Id.

(26) Id.

(27) Id.

(28) RESTATEMENT (SECOND) OF TORTS [sections] 821C cmt. b (1990) ("It is not enough that he has suffered the same kind of harm or interference but to a greater extent or degree.").

(29) The significance of the distinction between degree and kind is attributable to the wording of the Restatement, which states: "In order to recover damages in an individual action for a public nuisance, one must have suffered harm of a kind different from that suffered by other members of the public ...."Id. [sections] 821C(1).

(30) ALASKA CONST. art. VIII, [subsections] 3, 15, 17.

(31) Gilbert v. State Dep't of Fish & Game Bd. of Fisheries, 803 P.2d 391,399 (Alaska 1990); McDowell v. State, 785 P.2d 1, 11-12 (Alaska 1989) (discussing the uniform application clauses of Article VIII of the Alaskan Constitution).

(32) In re the Exxon Valdez, 104 F.3d at 1198.

(33) Id.

(34) ALASKA STAT. [subsections] 46.03.822 (Michie 1996).

(35) In re the Exxon Valdez, 104 F.3d at 1198. Economic benefit is defined as "a benefit measurable in economic terms, including but not limited to the gathering, catching, or killing of food or other items utilized in a subsistence economy and their replacement cost." ALASKA STAT. [sections] 46.03.826(2) (Michie 1996).

(36) GERALD W. BOSTON & M. STUART MADDEN, LAW OF ENVIRONMENTAL AND TOXIC TORTS: CASES, MATERIALS AND PROBLEMS 45 (1994).

(37) William L. Prosser, Private Action for Public Nuisance, 52 VA. L. REV. 997, 997 (1966).

(38) Id.

(39) RESTATEMENT (SECOND) TORTS, ch. 40, introductory note (1990).

(40) Prosser, supra note 37, at 999. A key difference between the two types of nuisances is that for private nuisance, the plaintiff's land or property has been adversely affected. Shay S. Scott, Combining Environmental Citizen Suits & Other Private Theories of Recovery, 8 J. ENVTL. L. & LITIG,. 369, 382 (1994).

(41) RESTATEMENT (SECOND) OF TORTS, ch. 40, introductory note (noting that each involves an element of harm, inconvenience, or annoyance to someone, which may be true of all torts).

(42) Prosser, supra note 37, at 999.

(43) While the Ninth Circuit did not discuss the possibility of a private nuisance action, thedistrict court pointed out that if there was a claim for private nuisance, it would belong to the Native corporations and landowners, not the individual Alaska Natives who comprised the class and who lacked a possessory interest in the land affected by the oil spill. In re the Exxon Valdez, No. A89-0095-CV, 1994 WL 182856, at *3 (D. Alaska Mar. 23, 1994).

(44) Examples include the following: hogpens, keeping diseased animals, and malarial ponds. Prosser, supra note 37, at 1000; see also RESTATEMENT (SECOND) TORTS, 821B cmt. B (1990).

(45) Examples include the following: storage of explosives, shooting fireworks in the streets, and practicing medicine without qualifications. Prosser, supra note 37, at 1000.

(46) Examples include the following: prostitution, illegal liquor establishments, gaming houses, indecent exhibitions, and public profanity. Id.

(47) Examples include the following: loud and disturbing noises and public performances threatening to cause a riot. Id.

(48) Examples include the following: bad odors, smoke, dust, and vibrations. Id.

(49) Examples include the following: obstructing a highway or navigable stream. Id. at 1000-01.

(50) Id.; see also RESTATEMENT (SECOND) TORTS, [sections] 831B cmt. b (1990) ("interference with ... a wide variety of other miscellaneous public rights of a similar kind").

(51) However, the distinction often can be hard to draw. For example, if pollution of a stream merely affects a large number or riparian owners, it is not a public nuisance. It would be a public nuisance, however, if the pollution killed the fish in the stream. Prosser, supra note 37, at 1001.

(52) Id. at 1002.

(53) Professor Sax has revived the Public Trust Doctrine as a means of environmental protection. Under the Public Trust Doctrine, the government holds public goods in a fiduciary capacity for its citizens. Others have turned to the law of private nuisance. John E. Bryson & Angus Macbeth, Public Nuisance, the Restatement (Second) of Torts, and Environmental Law, 2 ECOLOGY L.Q. 241, 275 (1972). The Public Trust Doctrine compliments public nuisance law. While public nuisance puts a check on the polluter, whether private or public, the Public Trust Doctrine puts a check on the government. Id. at 276.

(54) WILLIAM L. PROSSER, HANDBOOK ON THE LAW OF TORTS [sections] 88 (4th ed. 1971) ("Public nuisance has long been a quagmire in the law."); W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS [sections] 86, at 616 (5th ed. 1984) ("There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word `nuisance.'").

(55) Prosser, supra note 37, at 998-99.

(56) David R. Hodas, Private Actions for Public Nuisance: Common Law Citizen Suits for Relief from Environmental Harm, 16 ECOLOGY L.Q. 883, 884 (1989).

(57) Prosser, supra note 37, at 1004.

(58) Horace Wood, a nineteenth century writer, defined public nuisance in the context of tort, even though it retained its criminal element. Wood defined it as an aspect of tort law for which violations were criminally punishable. Bryson & Macbeth, supra note 53, at 243-44.

(59) Prosser, supra note 37, at 1005.

(60) Id. (quoting Anonymous, Y.B. Mich., 27 Hen. 8, f.26, pl.10 (1536)).

(61) William Prosser preferred using the term "particular damage" instead of "special injury" in order to avoid confusion with the term "special damage," and the connotation it had in connection with pleadings and proof and other types of actions such as defamation. Prosser, supra note 37, at 997. However, for the purposes of this Chapter, the term "special injury" will be used.

(62) Prosser, supra note 37, at 997. Quickly, however, limitations developed. Ever since Winterbottom v. Lord Derby, L.R. 2-Ex. 316 (1876), it was said that a plaintiff "who can show nothing more than that he travels a highway a great deal more frequently than anyone else does not establish [special injury] from the loss of its use." Prosser, supra note 37, at 1009. Even at this early juncture, the distinction had been made between difference in kind and difference in degree.

(63) Bryson & Macbeth, supra note 53, at 266.

(64) Prosser, supra note 37, at 1003. All states have numerous special statutes declaring certain conduct and conditions to constitute a public nuisance. Public nuisances are often made strict liability by statute. RESTATEMENT (SECOND)) TORTS [sections] 821B cmt. e (1990); see also ALASKA STAT. [subsections] 9.45.230, 46.03.822 (Michie 1996).

(65) Bryson & Macbeth, supra note 53, at 242.

(66) Id. at 248-49.

(67) It stated: "[s]ome courts have shown a tendency, for example, to treat substantial interference with recognized aesthetic values or established principles of conservation of natural resources as amounting to a public nuisance. The language of [this section] is not intended to set restrictions against such developments." Id. at 249 (citing RESTATEMENT (SECOND) OF TORTS [sections] 821B cmt. e (Tentative Draft No. 17, 1971)).

(68) Hodas, supra note 56, at 885-86.

(69) RESTATEMENT (SECOND) OF TORTS [sections] 821C(2) (1990).

(70) Id. [sections] 821B(2)(a)-(c).

(71) Id. [sections] 821C.

(72) Id. [sections] 821B(1).

(73) Id. [sections] 821A cmt. b(2).

(74) Id. [sections] 821B cmt. i (cautioning that the precedents for the two actions are not interchangeable).

(75) This change was made in order to "afford opportunity for development in the area of environmental protection." Bryson & Macbeth, supra note 53, at 256 (quoting RESTATEMENT (SECOND) OF TORTS [sections] 821C, note to institute (Tentative Draft No. 17, 1971)).

(76) Bryson & Macbeth, supra note 53, at 256-57.

(77) RESTATEMENT (SECOND) OF TORTS [sections] 821C cmt. b (1990).

(78) Id.

(79) Id.

(80) Id.

(81) Prosser, supra note 37, at 1010-11.

(82) Id. at 1009.

(83) Id. at 1010-11.

   Normally there may be no difference in the kind of interference with one
   who travels a road once a week and with one who travels it once a day. But
   if he traverses it a dozen times a day, he always has some special reason
   to do so, and that reason will almost invariably be based upon some special
   interest of his own not common to the community. Substantial interference
   with that interest must be [a special injury].

Id. at 1011. This argument seems equally applicable to the special interest the Alaska Natives have in the subsistence way of life. There is, however, no case law supporting such an action.

(84) RESTATEMENT (SECOND) OF TORTS [sections] 821C cmt. c (1990). Other factors to be considered, such as proximity to the nuisance, further blur the line between differences in kind and differences in degree. Id. [sections] 821C cmt. g.

(85) Hodas, supra note 56, at 888. Commentators have even gone so far as to assert that the special injury rule can be blamed for thwarting the development of public nuisance law. Bryson & Macbeth, supra note 53, at 264.

(86) Bryson & Macbeth, supra note 53, at 250 n.38.

(87) Id. at 253-54; RESTATEMENT (SECOND) OF TORTS [sections] 821C cmt. a (1990).

(88) Bryson & Macbeth, supra note 53, at 253.

(89) Id.; RESTATEMENT (SECOND) OF TORTS [sections] 821C cmt. a (1990).

(90) BOSTON, supra note 36, at 45.

(91) Bryson & Macbeth, supra note 53, at 245.

(92) See supra Part III.A.4

(93) Scott, supra note 40, at 386.

(94) See generally Garrett Hardin, The Tragedy of the Commons, 168 SCIENCE 1243 (1968) (providing an excellent discussion of externalities and economic principles in pollution).

(95) Hodas, supra note 56, at 889.

(96) Bryson & Macbeth, supra note 53, at 274. The argument contends that costs should be allocated to the polluter even when such allocation may make it difficult or impractical for the activity to continue. This would allow the marketplace to be the true test of utility. Id. However, internalization of costs is an equity measure and the courts could still balance the competing interests. Accordingly, if the defendant's action has social utility, an injunction may be denied even though damages may still be awarded to the plaintiff. Id. at 273; e.g., Boomer v. Atlantic Cement, Co., 257 N.E.2d 870 (N.Y. 1970) (awarding damages to the plaintiff, but refusing to enjoin the defendant's socially-useful activity, unless the nuisance was not abated by improved techniques within eighteen months).

(97) The district court deciding In re the Exxon Valdez addressed the issue of internalizing costs. In re the Exxon Valdez, No. A89-0095-CV, 1994 WL 182856, at *4 (D. Alaska Mar. 23, 1994) ("To the extent that one might view the grounding of the Exxon Valdez as a clash of cultures, the segment of society which demands oil and its products has paid and will continue to pay for the grounding of the Exxon Valdez."). The district court found the over $1 billion Exxon had paid up to that point adequate recompense for the eleven million gallons of oil that spilled and covered thousands of miles of beaches.

(98) Bryson & Macbeth, supra note 53, at 246.

(99) Hodas, supra note 56, at 889-90.

(100) Id.

(101) Even laws that abolish a significant number of standing requirements and allow any person to sue for environmental destruction and unreasonable pollution have not led to a flood of suits. Bryson & Macbeth, supra note 53, at 254.

(102) RESTATEMENT (SECOND) OF TORTS [sections] 821C cmt. j (1990).

(l03) Id.

(l04) Id. [sections] 821C(2)(c).

(105) See generally FED. R. CIV. P. 23.

(106) Under class actions for damages, there is a provision allowing class members to opt out of the class. FED. R. CIV. P. 23(c)(2). However, it is very rare for a class member to opt out of a well-run class action. JACK B. WEINSTEIN, INDIVIDUAL JUSTICE IN MASS TORT LITIGATION 136 (1995).

(107) Hodas, supra note 56, at 888. Professor Hodas suggested that the distinction does not make sense. Class status is not necessary in order to obtain equitable relief. Furthermore, the plaintiff in an equity action can seek damages. Id. Given these points, the justification for maintaining the distinction between suits in equity and those for damages is particularly enigmatic.

(108) A plaintiff always has certain requirements to meet. For example, a plaintiff must show substantial injury, thus lessening the possibility of frivolous suits. If a frivolous suit is brought, the court always maintains the authority to dismiss the suit and sanction the attorney who filed the action. Lastly, although it may not diminish the ability of a plaintiff to harass a defendant, any frivolous suit will not survive summary judgment or a complete trial on the merits. Such a suit could then serve res judicata or collateral estoppel functions to help prevent similar suits from being filed in the future.

(109) Bryson & Macbeth, supra note 53, at 252.

(110) Id.

(111) Id.

(112) Id. at 252 n.51 (citing Council on Environmental Quality, Resolution of Legal Advisory Committee, reprinted in 1 Env. Rptr.-Curr. Dev. 746 (1971)).

(113) Id.

(114) Hodas, supra note 56, at 884.

(115) Bryson & Macbeth, supra note 53, at 253. Staff attorneys for the Natural Resources Defense Council, John Bryson and Angus Macbeth, adequately laid out the parade of horribles as early as 1972 by warning: "Mercury pollution threatens extreme genetic, nervous system, and brain disorders. Badly polluted air may cause emphysema and other respiratory diseases. Chronic shrill noise threatens health and sanity, and oil spills ruin beaches, which may be an urban population's principal recreation area." Id.

(116) Hodas, supra note 56, at 891.

(117) Id. at 888.

(118) Scott, supra note 40, at 387 (quoting Bryson & Macbeth, supra note 53, at 258).

(119) Id. at 380.

(120) Id. at 372.

(121) Michael C. Skotnicki, Private Actions for Damages Resulting from an Environmental Public Nuisance: Overcoming the Barrier to Standing Posed by the "Special Injury" Rule, 16 AM. J. TRIAL ADVOC. 591, 592 (1992).

(122) Id. For example, NEPA only establishes procedural requirements. National Environmental Policy Act of 1969, 42 U.S.C. [sections] 4332(2)(C) (1994). Because NEPA does not have substantive requirements it only prevents uninformed, rather than unwise decisions. United States Forest Serv. v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).

(123) Skotnicki, supra note 121, at 592.

(124) Id. Accordingly, a plaintiff does not have to prove that a defendant was negligent or that her conduct was ultrahazardous.

(125) Scott, supra note 40, at 378-79.

(126) Bryson & Macbeth, supra note 53, at 279.

(127) Id. at 277.

(128) National Environmental Policy Act of 1969, 42 U.S.C. [sections] 4331(b) (1994); see supra note 122.

(129) See generally Prosser, supra note 37.

(130) Hodas, supra note 56, at 883.

(131) Skotnicki, supra note 121, at 594-95 (emphasis added).

(132) Bryson & Macbeth, supra note 53, at 247-48.

(133) Hodas, supra note 56, at 891-92.

(134) Bryson & Macbeth, supra note 53, at 263.

(135) RESTATEMENT (SECOND) OF TORTS [sections] 821C cmt. j (1990) ("The subsection is worded so as to leave the courts free to proceed with developments regarding standing to sue without the restrictive effect that would be imposed by a categoric statement of the traditional rule, which is found in a limited number of cases.").

(136) See Hodas, supra note 56; Bryson & Macbeth, supra note 53.

(137) In re the Exxon Valdez Alaska Native Class v. Exxon Corp., 104 F.3d 1196 (9th Cir. 1997).

(138) Bryson & Macbeth, supra note 53, at 265.

(139) Id. at 250.

(140) Prosser, supra note 37, at 1008-09.

(141) RESTATEMENT (SECOND) OF TORTS [sections] 821B cmt. g (1990). Accordingly, it was not proper to dismiss the claim of the Alaska Natives simply because the claim was common to many individuals. The fact that many people were affected only establishes that the nuisance was a public nuisance; it does not justify dismissing the claim.

(142) Prosser, supra note 37, at 1012.

(143) Id. at 1013-15.

(144) Id. at 1014.

(145) Id. at 1018.

(146) Id. at 1019-20.

(147) Scott, supra note 40, at 386.

(148) Wilson v. Parent, 365 P.2d 72 (Or. 1961). See Prosser, supra note 37, at 1012.

(149) 275 U.S. 303 (1927). (150) Id. at 308-09.

(151) Id. at 308.

(152) 370 F. Supp. 247 (S.D. Me. 1973).

(153) Id. at 251. For an early discussion of the doctrine of proximate cause, see Paisgraf v. Long Island R.R. Co., 162 N.E. 99 (N.Y. 1928).

(154) Burgess, 370 F. Supp. at 249.

(155) Id. at 250.

(156) Id.

(157) 523 F. Supp. 975 (E.D. Va. 1981).

(158) Id.

(159) Id. at 979-80.

(160) Kinsman Transit Co. v. City of Buffalo, 388 F.2d 821 (2d Cir. 1968) (allowing recovery where losses were not remote or unforeseeable); Venore Transp. Co. v. M/V Struma, 583 F. 2d 708 (4th Cir. 1978) (allowing individuals to recover despite the lack of a proprietary interest in the property damaged); Bethlehem Steel Corp. v. Marriott Corp., 631 F.2d 441 (6th Cir. 1980) (allowing recovery for economic damages that were direct and foreseeable); Chicago & W. Ind. R.R. Co. v. M/S Buko Maru, 505 F.2d 579 (7th Cir. 1974) (holding foreseeable economic damages were recoverable, even absent physical injury to a proprietary interest).

(161) Venore Trans. Co. v. M/V Struma, 583 F.2d 708 (4th Cir. 1978) (holding direct damage recoverable even without damage to proprietary interest).

(162) Louisiana ex rel. Guste v. M/V Testbank, 524 F. Supp. 1170 (E.D. La. 1981) (allowing commercial fishermen to recover for losses suffered after negligent collision of two ships, even though there was no proprietary interest over the aquatic life).

(163) Carbone v. Ursich, 209 F.2d 178 (9th Cir. 1953) (allowing commercial fishermen to maintain an action against another vessel that negligently damaged their nets even though the fisherman had no proprietary interest in the ship or the nets).

(164) Miller Indus. v. Caterpillar Tractor Co., 733 F.2d 813 (11th Cir. 1984) (allowing crew to claim damages due to lost catch when ship was incapacitated by defendant).

(165) See generally Scott, supra note 40, at 993-94.

(166) 191 F.2d 392 (9th Cir. 1951).

(167) 209 F.2d 178 (9th Cir. 1953).

(168) Id.

(169) 501 F. 2d 558, 567-69 (9th Cir. 1974).

(170) Id. at 559.

(171) Id. at 560 (quoting the district judge).

(172) Id. at 562. The court also acknowledged that in other cases, courts had invoked the doctrine of proximate cause to reach the same result. Id. at 563.

(173) Id. at 568 ("Duty, in other words, is measured by the scope of the risk which negligent conduct foreseeably entails.").

(174) Id. at 569.

(175) Id. at 570.

(176) In re the Exxon Valdez, No. A89-0095-CV, 1994 WL 182856, at *1 (D. Alaska Mar. 23, 1994). The Ninth Circuit stated that the Alaska Natives who were commercial fishermen were entitled to the benefit of Oppen's exception to the Robins Dry Dock rule. In re the Exxon Valdez Alaska Native Class v. Exxon Corp., 104 F.3d 1196, 1197-98 (9th Cir. 1997).

(177) United Nations Draft Declaration on the Rights of Indigenous Peoples. See generally Dean B. Suagee, Tribal Voices in Historic Preservation: Sacred Landscapes, Cross-Cultural Bridges, and Common Ground, 21 VT. L. Rev. 145, 155 (1996).

(178) Suagee, supra note 177, at 151.

(179) In re the Exxon Valdez Alaska Native Class v. Exxon Corp., 104 F.3d 1196, 1198 (9th Cir. 1997).

(180) WEINSTEIN, supra note 106, at 41.

(181) Id. at 123.

(182) HENRY J. STEINER, MORAL ARGUMENT AND SOCIAL VISION IN THE COURTS 106 (1987).

(183) WEINSTEIN, supra note 106, at 93.

(184) No. A89-0095-CV, 1994 WL 182856, at *3 (D. Alaska Mar. 23, 1994).

(185) Even with the increased trend toward using alternative dispute resolution (ADR) to resolve conflicts, each side of the dispute must find value in the other side's position. It is also helpful if both sides value an ongoing relationship. Otherwise, it is difficult to make concessions to the other side. Suagee, supra note 177, at 217-18.

(186) If someone who wishes to preserve a conflict can expose the subterfuge as a sham, then the conflict continues with each side having strong and credible arguments. One example of this is the perseverance of the abortion debate after the Supreme Court decided Roe v. Wade (410 U.S. 113 (1973)). GUIDO CALABRESI, IDEALS, BELIEFS, ATTITUDES, AND THE LAW 92 (1985).

(187) CALABRESI, supra note 186, at 97 (stating that the difference is between accepting a result contrary to your belief, and being told your beliefs themselves have no value).

(188) Id. at 92.

(189) Id. at 87-88.

(190) Id. at 117.

(191) Id. at 116.

(192) This is parallel to the dilemma presented by Second Circuit Judge Guido Calabresi in his hypothetical "gift of the evil deity." Id. at 1-3. In this hypothetical, an evil deity offers to grant one wish that could be used for the betterment of society. However, in return, the deity will cause the excruciating death of several people. When our society chooses to have an economy and lifestyle dependent on oil, we are aware that there inevitably will be accidents and oil spills that will greatly affect both nature and the lives of many individuals.

(193) In re the Exxon Valdez Alaska Native Class v. Exxon Corp., 104 F.3d 1196, 1198 (9th Cir. 1997).

(194) RESTATEMENT (SECOND) OF TORTS [sections] 821C cmt. b (1990).

(195) Many commentators encourage this latter view as a strong step in developing a society that is truly diverse and tolerant, if not appreciative, of differences. Suagee, supra note 177, at 159 ("The discovery of just one alternate way of being ... puts to rest forever, for that discoverer, the destructive myth that any single group holds a monopoly on civilization or imagination.") (quoting Michael Dorris, Native American Literature in an Ethnohistorical Context, in PAPER TRAIL ESSAYS 253, 254 (1994)).

(196) For example, the Columbia River Gorge represents an area where the special status of tribes has an integral part in federal legislation. Kristine Olson Rogers, Native American Collaboration in Cultural Resource Protection in the Columbia River Gorge National Scenic Area, 17 VT. L. REV. 741,761-66, 787 (1993). The special status of tribes has also found recognition in the areas of international law, treaties, and whaling. Lawrence Watters & Connie Dugger, The Hunt for Gray Whales: The Dilema of Native American Treaty Rights and the International Moratorium on Whaling, 22 COLUM. J. ENVTL. L. 319, 339-43 (1997). In particular, Professor Robert A. Williams, Jr. has been an instrumental figure in recognizing the unique nature of Native American culture, the difficulty in its valuation, and its importance to all humans. See, e.g., Robert A. Williams, Jr., Encounters on the Frontiers of International Human Rights Law: Redefining the Terms of Indigenous Peoples' Survival in the World, 1990 DUKE L. J. 660, 682-88 (1990); Robert A. Williams, Jr., The Medieval and Renaissance Origins of the Status of the American Indian in Western Legal Thought, 57 S. CAL. L. REV. 1, 10-11 (1983).

(197) Joshua E. Kastenberg, Assessing the Evolution and Available Actions for Recovery in Cultural Property Cases, 6 DEPAUL-L.C.A. J. ART & ENT. L. 39, 51 (1995).

(198) Id.

(199) 30 U.S. 1 (1831).

(200) Id.

(201) Id.

(202) 118 U.S. 375 (1886).

(203) Id. at 384.

(204) 316 U.S. 286 (1942).

(205) Id. at 295.

(206) Id. at 296.

(207) Id. at 297.

(208) Suagee, supra note 177, at 150.

(209) Id. at 224.

(210) WEINSTEIN, supra note 106, at 90.

(211) June 8, 1906, ch. 3060, 34 Stat. 225 (1906).

(212) United States v. Diaz, 499 F.2d 113, 114-15 (9th Cir. 1974).

(213) United States v. Smyer, 596 F.2d 939, 941 (10th Cir. 1979).

(214) 143 CONG. REC. S8041-01 (daily ed. July 24, 1997) (statement of Sen. Frank Murkowski (R-AK)).

(215) Suagee, supra note 177, at 160.

(216) Sarah Harding, Justifying Repatriation of Native American Cultural Property, 72 IND. L.J. 723, 760-61 (1997).

(217) Id.

(218) Id.

(219) Therefore, even though the Ninth Circuit pointed out that every Alaskan is guaranteed a right to a subsistence way of life, even someone who uses the natural resources to a commensurate degree would most likely not suffer the same kind of injury as that suffered by the Alaska Natives.

(220) LINDA J. ELLANNA & GEORGE K. SHERROD, ALASKA DEP'T OF FISH AND GAME, THE ROLE OF KINSHIP LINKAGES IN SUBSISTENCE PRODUCTION: SOME IMPLICATIONS FOR COMMUNITY ORGANIZATION 9 (1984).

(221) Id. at 17.

(222) Id. at 10.

(223) Id. at 18-19.

(224) Id. at 19.

(225) Kastenberg, supra note 197, at 51-52. For example, in Lyng v. Northwest Indian Cemetery Protective Ass'n, the court allowed the Department of Interior to build logging roads through sacred sites. 485 U.S. 439 (1988). The court dismissed arguments that the land was a cultural resource and that the Department of Interior was infringing on religious freedom as guaranteed by both the First Amendment (U.S. CONST. amend. I [sections] 3) and the American

Indian Religious Freedom Act of 1978 (42 U.S.C. [sections] 1966 (1994)). Id. at 457.

(226) American Indian Religious Freedom Act of 1978, 42 U.S.C. [sections] 1966 (1994).

(227) The Native American Graves Protection and Repatriation Act, 32 U.S.C. [subsections] 3000-3013 (1994).

(228) Archaeological Resources Protection Act of 1979, 16 U.S.C. [sections] 470aa et seq. (1994).

(229) Kastenberg, supra note 197, at 60.

(230) 16 U.S.C. [sections] 712 (allowing the Secretary of the Interior to permit Alaska Natives to kill prohibited birds in order to meet their own nutritional and other essential needs).

(231) 16 U.S.C. [sections] 1388 (allowing the Secretary of the Interior to enter into cooperative agreements with Alaska Native organizations to provide comanagement of subsistence use by Alaska Natives).

(232) Oil Pollution Act of 1990, 33 U.S.C. [subsections] 2701-2761 (1994).

(233) 16 U.S.C. [subsections] 3101-3233 (1994).

(234) Id. [sections] 3111(a)(1).

(235) Id. [sections] 3111(a)(2).

(236) ALASKA CONST. art. VIII, [subsections] 3, 15, 17. It is ironic that the Alaska Constitution, by adopting a pro-subsistence-living policy, actually led to the dismissal of the Alaska Natives' subsistence claim. By constitutionally guaranteeing a subsistence way of life to all Alaskans, damage from the oil spill infringed a constitutional right of every Alaskan and not just the lifestyle of Alaska Natives. Accordingly, the Alaska Natives were unable to show that they had suffered a damage different in kind than that suffered by all Alaskans generally.

(237) WEINSTEIN, supra note 106, at 33.

(238) Suagee, supra note 177, at 148.

(239) CALABRESI, supra note 186, at 98.

(240) 104 F.3d 1196 (9th Cir. 1997).

(241) No. A89-0095-CV, 1994 WL 182856, at * 4 (D. Alaska Mar. 23, 1994).

(242) WEINSTEIN, supra note 106, at 127.

(243) Commentators have proposed several potential solutions to improve the judicial system's handling of mass tort cases. For example, hybrid government-sponsored protection plans, such as those used in the nuclear industry, have been hailed as a good way of dealing with disasters. WEINSTEIN, supra note 106, at 31. Other potential solutions include adoption of a national tort or administrative scheme, development of a national disaster court, increased transfer powers within the courts, increased conflict of law devices, and a uniform social welfare system. Id. Proponents of these methods believe that regulatory entities can deter potential tortfeasors more effectively than the tort system. Id.

(244) WEINSTEIN, supra note 106, at 171.

(245) Id.

(246) STEINER, supra note 182, at 123-24.

(247) 104 F.3d 1196 (9th Cir. 1997).

(248) It should be noted that, in the past, the Ninth Circuit has not shied away from taking bold stances with respect to environmental and Native American issues. The Ninth Circuit has even maintained its position seemingly undaunted by a high reversal rate by the Supreme Court. For example, during the last session, the Supreme Court reversed 19 of the 20 Ninth Circuit cases it heard, a 95% reversal rate. 143 CONG. REC. S8041-01 (daily ed. July 24, 1997) (statement of Sen. Frank Murkowski (R-AK)). Senator Murkowski stated that the Ninth Circuit judges too readily decide in favor of environmentalists and Native Americans and against opposing groups such as various governments as well as ranchers, miners, and loggers. Id. Perhaps receiving continuous criticism has made the Ninth Circuit more cautious and has prevented it from taking what would be a fairly courageous step in abandoning the special injury rule.

(249) 104 F.3d 1196 (9th Cir. 1997).

CHRISTOPER V. PANOFF, Student, Northwestern School of Law of Lewis & Clark College, J.D. expected 1999; Certificate in Environmental & Natural Resources Law expected 1999; Editor in Chief, Environmental Law 1998-1999; B.S. 1996, summa cum laude, Michigan Technological University. I would like to thank Professor Lawrence Watters of Northwestern School of Law of Lewis & Clark College for his advice and guidance in the completion of this Chapter.