El Paso Natural Gas Co. v. Neztsosie, s. 96-17121

• Decision Date: 27 April 1997
• Docket Number: 96-17139,Nos. 96-17121,s. 96-17121
• Citation: 136 F.3d 610
• Parties: , 28 Envtl. L. Rep. 20,550, 98 Cal. Daily Op. Serv. 1040, 98 Daily Journal D.A.R. 1475 EL PASO NATURAL GAS COMPANY, a Delaware Corporation, Plaintiff-Appellant, v. Laura NEZTSOSIE; Arlinda Neztsosie, Defendants-Appellees. CYPRUS FOOTE MINERAL COMPANY, a Pennsylvania Corporation; Cyprus Amax Mineral Company, a Delaware Corporation, Plaintiffs-Appellants, v. Zonnie Marie Dandy RICHARDS, individually and as representative of the Estate of Harold J. Richards, Sr., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 610

136 F.3d 610

67 USLW 3479, 28 Envtl. L. Rep. 20,550,

98 Cal. Daily Op. Serv. 1040,

98 Daily Journal D.A.R. 1475

EL PASO NATURAL GAS COMPANY, a Delaware Corporation, Plaintiff-Appellant, v. Laura NEZTSOSIE; Arlinda Neztsosie, Defendants-Appellees.

CYPRUS FOOTE MINERAL COMPANY, a Pennsylvania Corporation;

Cyprus Amax Mineral Company, a Delaware

Corporation, Plaintiffs-Appellants, v. Zonnie Marie Dandy RICHARDS, individually and as

representative of the Estate of Harold J.

Richards, Sr., Defendant-Appellee.

Nos. 96-17121, 96-17139.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 5, 1997.

Decided Feb. 11, 1998.

As Amended on Denial of Rehearing and Rehearing En Banc

April 27, 1997. ^*

Tom Galbraith, Lewis and Roca, LLP, O'Connor, Cavanagh, Anderson, Westover, Killingsworh & Beshears, and Bryan Cave, Phoenix, AZ, for plaintiffs-appellants.

Seth Richard Lesser, Bernstein Litowitz, Berger & Grossmann, LLP, New York City, Cherie V. Daut, Shiprock, New Mexico and Melat, Pressman, Ezell & Higbie, Colorado Springs, CO, for defendants-appellees.

Appeals from the United States District Court for the District of Arizona; Robert G. Strand, District Judge, Presiding. D.C. Nos. CV-96-00049-RGS, CV-96-01524-RGS.

Before: PREGERSON, FERGUSON, and KLEINFELD, Circuit Judges.

PREGERSON, Circuit Judge:

Members of the Navajo Nation (the "Navajo Court Plaintiffs") filed two separate actions in Navajo Tribal Court against corporations that conducted uranium mining operations on the Navajo Nation Reservation. The Navajo Court Plaintiffs alleged personal injury and wrongful death claims based on Navajo common law. In response to those actions, El Paso Natural Gas Company ("El Paso") and Cyprus Foote Mineral Company and Cyprus Amax Minerals Company (collectively "Cyprus") filed two separate suits in federal district court seeking preliminary injunctions to enjoin the Navajo Tribal Court from asserting jurisdiction over the Navajo Court Plaintiffs' claims. El Paso and Cyprus (collectively the "mining companies") alleged that all actions arising from "nuclear incidents" fall within the Price-Anderson Act, 42 U.S.C. § 2011 et seq., and must be litigated in federal court.

The district court granted in part, and denied in part, the mining companies' requests for preliminary injunctions. The district court granted the preliminary injunctions to the extent the Navajo Court Plaintiffs alleged claims under Price-Anderson. The district court denied the preliminary injunctions, however, to the extent the Navajo Court Plaintiffs did not allege Price-Anderson claims. We have jurisdiction under 28 U.S.C. § 1292(a)(1). We affirm in part and reverse in part.

FACTS AND PRIOR PROCEEDINGS

The two actions filed by the Navajo Court Plaintiffs have been consolidated for this appeal. The facts and prior proceedings in each of these actions are as follows:

1. Neztsosie v. El Paso

Between 1956 and 1959, Rare Metals Corporation of America ("Rare Metals"), a now defunct subsidiary of El Paso, conducted uranium mining operations on the Navajo Nation Reservation. On March 29, 1995, Laura and Arlinda Neztsosie (the "Neztsosies"), members of the Navajo Nation, filed suit against Rare Metals in Navajo Tribal Court.

The Neztsosies asserted claims for personal injuries arising from Rare Metals' uranium mining activities.

On January 5, 1996, El Paso filed suit against the Neztsosies in the United States District Court for the District of Arizona. El Paso sought a preliminary injunction enjoining the Neztsosies from prosecuting their claims in the Navajo Tribal Court. El Paso also sought a declaration that the Navajo Tribal Court had no jurisdiction over the Neztsosies's claims. El Paso asserted that the Neztsosies had to litigate their claims in federal court because their claims alleged liability arising from a "nuclear incident" under the Price-Anderson Act, 42 U.S.C. §§ 2014, 2210.

After a hearing, District Court Judge Robert G. Strand, entered an order denying in part, and granting in part, El Paso's request for a preliminary injunction. The district court denied El Paso's request for a preliminary injunction "to the extent that it in any way seeks to have this Court rule on any aspect of jurisdiction of the Navajo tribal court ... except to the extent that [the Neztsosies] seek relief based upon the Price-Anderson Act in tribal court." In reaching its decision, the district court relied on "principles of tribal sovereignty" and the "tribal exhaustion doctrine." The district court stated, however, that it did not determine whether Price-Anderson had any application to the claims asserted by the Neztsosies in Tribal Court.

2. Richards v. Cyprus

Cyprus Foote Mineral Company is the successor by merger to Vanadium Corporation of America ("VCA"). From the 1940's through the 1960's, VCA operated a uranium mine in Cane Valley, Arizona, known as Monument No. 2 mine. During the 1960's, VCA also constructed and operated a uranium concentrator at the Monument No. 2 mine site. The remnants of the ore concentrating process consisted of uranium tailings. The tailings produced by the concentrator were stored on a tailings pile on land adjacent to the Monument No. 2 mine site.

On April 20, 1995, Zonnie Marie Dandy Richards, a member of the Navajo Nation, filed suit individually, and as representative of her deceased husband's estate, against VCA and others in Navajo Tribal Court. Richards asserted claims for wrongful death and personal injuries arising from VCA's activities at the Monument No. 2 mine site.

On June 26, 1996, Cyprus filed suit against Richards in the United States District Court for the District of Arizona. Like El Paso, Cyprus sought a preliminary injunction enjoining Richards from prosecuting her claims in Navajo Tribal Court. Cyprus also sought a declaration that the Navajo Tribal Court had no jurisdiction over Richards's claims. Cyprus alleged that Richards had to litigate her claims in federal court because she alleged liability arising from a "nuclear incident" under Price-Anderson.

The Richards action, like the Neztsosie action, was assigned to District Court Judge Strand. The district court entered an order substantially similar to the order issued in the Neztsosie matter. The district court denied in part, and granted in part, Cyprus's request for a preliminary injunction.

El Paso and Cyprus timely appeal the district court's orders.

STANDARD OF REVIEW

We review de novo whether the district court was required to abstain from granting or denying an injunction when a party has failed to exhaust tribal court remedies. Burlington N. R.R. v. Red Wolf, 106 F.3d 868, 869-70 (9th Cir.1997) (en banc).

I. The Tribal Exhaustion Requirement

The Supreme Court has stated that, subject to certain exceptions, comity principles require federal courts to either dismiss or abstain from deciding cases in which a party asserts that concurrent jurisdiction exists in an Indian tribal court. Crawford v. Genuine Parts Co., 947 F.2d 1405, 1407 (9th Cir.1991) (citing National Farmers Un. Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985) and Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987)). "Considerations of comity require the exhaustion "[T]he initial determination of whether the Tribe has jurisdiction lies with the tribal court alone." Crow Tribal Council, 940 F.2d at 1244. "[N]on-Indian defendants must exhaust tribal court remedies before seeking relief in federal court, even where defendants allege that proceedings in tribal court exceed tribal sovereign jurisdiction." Id.

of tribal remedies before the [tribal court's jurisdiction] may be addressed by the district court." Wellman v. Chevron USA, Inc., 815 F.2d 577, 578 (9th Cir.1987). "The requirement of exhaustion of tribal remedies is not discretionary; it is mandatory." Burlington N. R.R. v. Crow Tribal Council ("Crow Tribal Council "), 940 F.2d 1239, 1245 (9th Cir.1991). "Until petitioners have exhausted the remedies available to them in the Tribal Court system, it would be premature for a federal court to consider any relief." National Farmers, 471 U.S. at 857, 105 S.Ct. at 2454 (footnote omitted); see also Yellowstone County v. Pease, 96 F.3d 1169, 1171 (9th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1691, 137 L.Ed.2d 818 (1997) ("[A] party must exhaust tribal court remedies before a federal district court may entertain a challenge to tribal jurisdiction.") (emphasis added); Crow Tribal Council, 940 F.2d at 1244 ("[F]ederal courts should not even make a ruling on tribal court jurisdiction until tribal remedies are exhausted.") (citation omitted).

The tribal exhaustion requirement is based on considerations of comity and the long-standing policy of promoting tribal self-government and self-determination. National Farmers, 471 U.S. at 856, 105 S.Ct. at 2453-54. "[T]he federal policy supporting tribal self-government directs a federal court to stay its hand in order to give the tribal court a 'full opportunity to determine its own jurisdiction.' " Iowa Mut., 480 U.S. at 16, 107 S.Ct. at 976 (quoting National Farmers, 471 U.S. at 857, 105 S.Ct. at 2454).

The existence and extent of a tribal court's jurisdiction require a careful examination of tribal sovereignty. "[T]hat examination should be conducted in the first instance in the Tribal Court itself." National Farmers, 471 U.S. at 856, 105 S.Ct. at 2454. "[P]roper respect for tribal legal institutions requires that they be given a 'full opportunity' to consider the issues before them and 'to rectify errors.' " Iowa Mut., 480 U.S. at 16, 107 S.Ct. at 976-77 (citing National Farmers, 471 U.S. at 857, 105 S.Ct. at 2454).

While tribal exhaustion promotes tribal self-government and self-determination, it also promotes judicial efficiency:

[T]he orderly administration of justice in the federal court will be served by allowing a full record to be...