Begay v. U.S.

• Decision Date: 13 August 1985
• Docket Number: No. 84-2462,84-2462
• Citation: 768 F.2d 1059
• Parties: 15 Envtl. L. Rep. 20,848 John N. BEGAY and his wife, Mable Lee Begay; Kee Atcitty; Bob B. Begay and his wife, Mae Begay, et al., Plaintiffs/Appellants, v. UNITED STATES of America, Defendant/Appellee. Phillip ANDERSON, Marry John Badoni, Hoskie R. Barton, Clyde Begay, Harvey Lee Begay and Herbert N. Begay, et al., Plaintiffs/Appellants, v. UNITED STATES of America, Defendant/Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1059

768 F.2d 1059

15 Envtl. L. Rep. 20,848

John N. BEGAY and his wife, Mable Lee Begay; Kee Atcitty;

Bob B. Begay and his wife, Mae Begay, et al., Plaintiffs/Appellants, v. UNITED STATES of America, Defendant/Appellee.

Phillip ANDERSON, Marry John Badoni, Hoskie R. Barton, Clyde

Begay, Harvey Lee Begay and Herbert N. Begay, et

al., Plaintiffs/Appellants, v. UNITED STATES of America, Defendant/Appellee.

No. 84-2462.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 16, 1985.

Aug. 13, 1985.

Stewart L. Udall, Phoenix, Ariz., for plaintiffs/appellants.

Mark H. Gallant, Atty., Dept. of Justice, I. Avrum Fingeret, Trial Atty., U.S. Dept. of Energy, Washington, D.C., for defendant/appellee.

Appeal from the United States District Court for the District of Arizona.

Before ANDERSON and CANBY, Circuit Judges, and IDEMAN ^*, District Judge.

J. BLAINE ANDERSON, Circuit Judge:

I. OVERVIEW

The plaintiffs in this case are Navajo Indians residing on the reservation in Arizona. They are either Navajo miners who used to work in uranium mines or survivors of deceased Navajo uranium miners. The underground uranium mines involved in this case are located in Utah, Colorado, New Mexico, and Arizona, both on and off the Navajo Indian Reservation. More specifically, eleven plaintiffs were selected as a representative group for trial purposes out of more than 200 plaintiffs. The plaintiffs sought jurisdiction in the district court pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 2671, et seq.

The plaintiffs allege that they contracted lung cancer and other diseases from radiation exposure because of the failure by the various federal and state agencies to warn them of the dangers involved in uranium mining. The plaintiffs additionally assert that the failure to warn the miners of the dangers of uranium mining unnecessarily exposed the miners to risks that could have been prevented. Plaintiffs also assert that this exposure resulted in the eventual death of some of the miners. The district court, after extensive discovery and a trial, dismissed the case for lack of jurisdiction based on the "discretionary function" exception of the FTCA, 28 U.S.C. Sec. 2680(a). ¹ We affirm.

II. FACTS

The district court, in its opinion, Begay v. United States, 591 F.Supp. 991 (D.Ariz.1984), sets forth a very thorough and comprehensive explanation of the factual background in this case. The agencies involved in this case are the Atomic Energy Commission (AEC), the U.S. Public Health Service (PHS), the AEC Division of Biology and Medicine, the Department of Interior's Bureau of Mines (BOM), the Los Alamos Scientific Laboratory, the Atomic Energy Project at the University of Rochester, the U.S. Department of Health and Welfare (HEW), the U.S. Surgeon General's Office, the U.S. Department of Labor, the U.S. Geological Survey (USGS), the Arizona Mine Inspector, and the Navajo Mining Engineers. Because the district court did such a thorough job in stating the facts in this controversy, we list only those facts that we find salient to resolving the issue before us.

Mining of ores bearing uranium-vanadium compositions was first started in the United States during the early 1900's. Most of these mines were located in what is called the Uravan Mineral Belt portion of the Colorado Plateau in western Colorado and eastern Utah. At first, mining of uranium ore was minimal and did not start to rapidly expand until the 1950's. This rapid increase in uranium mining was a result of the AEC's need for uranium in nuclear weapons production. Most uranium mines were smaller in size than other metal mines, but by 1966, approximately 2,900 miners were employed in uranium mines.

In August of 1949, the state of Colorado requested the help of the U.S. Public During the study, the PHS, as a part of HEW, was under the direct administration of the U.S. Surgeon General's Office. At no time did the PHS have the authority to regulate the safety conditions in the uranium mines. Likewise, the AEC had no authority under the Atomic Energy Act to regulate or enforce health and safety standards in mines. However, AEC did have the capability to influence the extent of safety equipment used in privately operated mines on government land leased from the AEC. This influence was exerted by rewriting the lease agreements between AEC and the owners of the private mines. By including certain requirements for safety equipment to be used in the mines as terms in the lease, AEC was able to indirectly regulate health and safety standards in the mines. The district court found that some of the other agencies did have, or perceived to have, some type of regulatory authority over the safe operation of the mines.

Health Service to conduct a medical/environmental survey on the health hazards associated with uranium mining. The PHS survey was an epidemiological study which had two objectives: To determine the relationship between exposures to radioactivity and the biologic effect on miners, and to develop engineering methods to minimize the exposures to radioactivity and make those methods available to the state mine regulators and to the mining industry. The PHS received assistance on the project from the AEC Division of Biology and Medicine, the Department of Interior's Bureau of Mines, the Los Alamos Scientific Laboratory, and the Atomic Energy Project at the University of Rochester.

The Department of Labor did not conduct any inspections of the mines in question even though it was under the impression that it had some authorization to regulate mine safety pursuant to the Public Contracts Act. The district court found that Labor abstained from taking any action because of the prevailing view that other agencies, state or federal, could better set standards and enforce them.

The Department of Interior had authority to regulate mines located on Indian and public lands, but not private lands. The authority to inspect the mines, under the auspices of Interior, was given to the BOM and to the USGS in 1944. With regard to those powers, the district court found that the BOM and USGS did not have any clear federal standards by which to conduct their inspections. As a result, BOM and USGS sent copies of their reports of mine inspections to Arizona and to the Navajo Mining Engineer.

The Navajo Mining Engineer had the independent power to enter, inspect and close any mine on Navajo property. The Arizona Mine Inspector could inspect the mines, but could not order their closure.

With the scope of each agency's authority and power in mind, we look to the role of the PHS and their medical study. For purposes of the medical study the PHS established a cohort of miners, all volunteers, to whom they gave annual, then triennial, physical examinations. If test results from these physicals were abnormal, the miner was referred to local medical facilities for further treatment or study. In the case of the Navajo miners, referrals were sent to the PHS Indian Hospital. The PHS study team did not represent that it would provide health care to the members of the cohort.

When physical examinations were performed on Navajo miners who could not speak English, interpreters were provided. During the course of the physicals the miners were told that the examination was part of a study to determine the health of uranium miners. The district court stated that because an epidemiological study deals with group statistics, conclusions from the study cannot appropriately be applied to specific participants of a group. The district court also found that the PHS physicians conducting the examinations dealt only with that examination and its results, and that the conduct of the PHS doctors participating in the study and the limits of the information given to the miners studied was consistent with the medical, ethical In 1951, the environmental side of the PHS survey determined that radiation decay products (daughter products) of radon contributed the greater portion of the radiation dose to the lung tissue. In 1959, for the first time, the results from the PHS study indicated a statistical increase above the number of expected deaths from lung cancer among miners. Although not conclusive, it was the first apparent evidence linking lung cancer and exposure to high concentrations of radon daughters. As a result, it was suggested to the Surgeon General that an interdepartmental conference be convened to determine what action, if any, the federal government was going to take in response to this statistical increase of lung cancer deaths in uranium miners.

and legal standards of the 1940's and 1950's.

The Interagency Committee recommended to the Secretary of HEW "that every effort should be made to impress upon the states the seriousness of this problem and the need to assume their rightful responsibilities" over regulation of mine health and safety conditions.

In 1960, a Governors' conference was called of the uranium mining states and the federal government offered its assistance in correcting the perceived health problems associated with uranium mining. Federal legislation that would preempt state laws and regulation concerning mining safety was something that neither the states nor the federal government wanted. Historically, the state governments had felt the regulation of mine health and safety was a matter of state business. At the same time, however, federal assistance, both financial and technical, was desired to help solve the radon daughter problem.

Colorado and New Mexico did begin to regulate mine operations in the early 1960's based on the PHS recommendations as to the radiation exposure limits. However, not until 1967 was a uniform federal radiation standard for underground uranium mining established and implemented.

III. ANALYSIS

The gist of the plaintiffs' complaint falls into two general categories. First, that various federal agencies were negligent in failing to...