Gros Ventre Tribe v. U.S.

• Decision Date: 22 October 2004
• Docket Number: No. CV 00-69-M-DWM.,CV 00-69-M-DWM.
• Citation: 344 F.Supp.2d 1221
• Parties: GROS VENTRE TRIBE, Assinboine Tribe, and the Fort Belknap Indian Community Council, Plaintiffs, v. UNITED STATES of America; Bureau of Land Management, an agency of the U.S. Department of Interior; Bureau of Indian Affairs, an agency of the U.S. Department of Interior; and Indian Health Service, an agency of the U.S. Department of Health and Human Services, Defendants.
• Court: U.S. District Court — District of Montana

344 F.Supp.2d 1221

GROS VENTRE TRIBE, Assinboine Tribe, and the Fort Belknap Indian Community Council, Plaintiffs, v. UNITED STATES of America; Bureau of Land Management, an agency of the U.S. Department of Interior; Bureau of Indian Affairs, an agency of the U.S. Department of Interior; and Indian Health Service, an agency of the U.S. Department of Health and Human Services, Defendants.

No. CV 00-69-M-DWM.

United States District Court, D. Montana, Missoula Division.

October 22, 2004.

Michael Axline, Eugene, OR, Robert T. Coulter, Andrew Huff, Helena, MT, Amy R. Atwood, for Plaintiffs.

Lori Caramanian, U.S. Department of Justice, Denver, CO, Silas DeRoma, U.S. Department of Justice, Washington, DC, for Defendants.

ORDER

I. Introduction

On July 12, 2004, Plaintiffs made a timely motion pursuant to Fed. Rule Civ. P. 59(e) to alter or amend the Court's June 29, 2004 Order granting summary judgment to the BLM. Amendment or alteration is appropriate under Rule 59(e) if (1) the district court is presented with newly discovered evidence, (2) the district court committed clear error or made an initial decision that was manifestly unjust, or (3) there is an intervening change in controlling law. School Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993).

Plaintiffs' motion is premised on the second criterion, clear error or manifest injustice. They contend they were never given an opportunity to brief the issue of remedies, the lack of which was held to be fatal to their claim, and that the Court's Order is inconsistent with its 2001 Order denying the government's motion to dismiss. They ask that the Court vacate its judgment and either deny the government's motion for summary judgment and grant Plaintiffs' motion for summary judgment as to liability, or allow Plaintiffs to brief the issue of remedies. The Tribes contend that the Court's finding of "the lack of an effective remedy for any wrongs committed on the Tribes" in the absence of briefing on that particular issue is fundamentally unfair. They argue that declaratory relief would "clarify the legal obligations of federal agencies to tribal governments in federal decisions which affect tribal interests and rights," and that the Court could order the government to, among other things, build a water treatment system at the headwaters of King Creek. They cite to the earlier ruling on the motion to dismiss as well as a ruling denying the government's motion for a protective order, both of which stated that the Tribes' trust claims were distinct from their APA claims, and could not be treated as typical administrative record-review cases.

The government argues in opposition that the Plaintiffs have failed to meet any of the criteria for amending a judgment; that the Court's order is properly interpreted as finding that the Plaintiffs lacked standing due to lack of redressability; that the Court was correct in holding that the breach of trust claim must be reviewed under the APA; that Plaintiffs had ample opportunity to brief the issue of standing, even though the arguments were not denominated as such; and that Court is required to examine its jurisdiction sua sponte at every stage of the proceedings. The government also points out that the court is free to reconsider any of its previous rulings. "Concerns of justiciability go to the power of the federal courts to entertain disputes, and to the wisdom of their doing so." Renne v. Geary, 501 U.S. 312, 316, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991).

In November 2001, this Court denied the government's motion to dismiss on the grounds that the Tribes had stated a cognizable common-law breach of trust claim. It understood the Tribes' claim to be a common-law claim separate from the APA, thereby not requiring an identifiable final agency action subject to a statute of limitations defense. It has reconsidered that ruling sua sponte, and held implicitly in its June 29 Order and judgment that a common-law breach of trust claim must, as a jurisdictional matter, be analyzed within the framework of the APA. Within that framework, the Tribes' claims fail on a number of grounds.

The briefs on this motion suggest that the Court's June 29 decision was not as clear as it could have been in its analysis and discussion of the Tribes' claims. The Court will deny the motion to amend, but will take this opportunity to clarify its reasoning.

II. Factual Background

The Zortman and Landusky Mines are in the Little Rocky Mountains, on a mix of private and federal land. The Little Rockies were once wholly within the boundaries of the Fort Belknap Reservation, but were ceded to the federal government by the Tribes in the late 1800s. The mines are surrounded on three sides by the Fort Belknap Reservation, but are not on the reservation. Some of the creeks flowing from the Little Rockies flow onto the reservation.

Zortman and Landusky were originally permitted in 1979 by the Montana Department of State Lands. Both mines used cyanide heap-leach processing of gold. In 1979, mining operations undertaken on public lands pursuant to the General Mining Law of 1872, 30 U.S.C. § 22 et seq., did not require any review or approval from the BLM. Nonetheless, BLM commented on the Draft Environmental Impact Statement (DEIS) in a letter dated March 19, 1979. Regarding surface water quality, the BLM stated, "Our studies indicate high concentration of arsenic flowing from the Gold Bug Adit present at Montana Gulch Campground." Regarding groundwater quality, the BLM stated, "The water discharged from the Gold Bug Adit, with its high concentration of arsenic, has an extremely negative impact on the Montana Gulch campground and all landowners downstream from the mining area." In February 1993, the Montana Department of State Lands first disclosed that the mines were leaching acid rock drainage (ARD).

BLM became involved in the approval of mining operations at Zortman and Landusky in 1981 — when its surface management regulations became effective — for those portions of the two projects that were on BLM-administered lands. 45 Fed.Reg. 78902 (Nov. 26, 1980) (adopting first set of regulations at 43 C.F.R. Part 3809). In 1981, the State and BLM entered into a Memorandum of Understanding (MOU) to address "cooperative procedures for mines that were in existence prior to the effective date of the 43 CFR 3809 regulations." In 1984, the State and BLM entered into an MOU to address "the administration of plans of operations filed after the effective date of the regulations and involving greater than 5 acres of surface disturbance pursuant to 43 CFR 3809.1."

After granting the initial permits to ZMI, the State, acting through the DSL and its successor the Montana Department of Environmental Quality (MDEQ), granted a number of amendments to the permits for both mines.

BLM approved modifications to the operating permit in March 1994, but deferred further approval on expansion pending completion of an EIS. Following preparation of the EIS, BLM approved additional permits for expansion and reclamation plans in 1996; however, the Interior Board of Land Appeals (IBLA) vacated the decision. Island Mountain Protectors, National Wildlife Federation, Assiniboine and Gros Ventre Tribes, & Fort Belknap Community Council, IBLA 97-76, 97-77, 97-85 (May 29, 1988). The IBLA decision was never appealed, Pegasus declared bankruptcy in 1998, and the proposed expansion never took place.

The mines closed in 1998. They are now jointly operated, and being reclaimed, by BLM and the Montana Department of Environmental Quality (DEQ). BLM and Montana DEQ released a Supplemental EIS to the 1996 EIS in 2002, examining six reclamation alternatives for each mine. 67 Fed.Reg. 7191-01 (Feb. 15, 2002). BLM subsequently issued a Record of Decision adopting the preferred alternatives. Plaintiffs have appealed that decision to the IBLA. Those reclamation plans are not part of Plaintiffs' lawsuit herein.

The Tribes allege in their Complaint that past and ongoing impacts of the mines have adversely affected tribal lands and resources, in violation of the federal government's trust responsibility to the Tribes and the Federal Land and Policy Management Act (FLPMA), 43 U.S.C. § 1732(b); 43 C.F.R. § 3809. They seek declaratory relief regarding these violations, a writ of mandamus compelling reclamation of the mine sites, and an injunction. They do not seek money damages.

III. Analysis

A. Subject Matter Jurisdiction: APA Requirements

Jurisdiction over any suit against the government requires a clear waiver of sovereign immunity by the United States. United States v. Mitchell, 445 U.S. 535, 538-539, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (Mitchell I). Additionally, it requires a claim falling within the terms of the waiver. United States v. Mitchell, 463 U.S. 206, 216-217, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (Mitchell II). The terms of the government's consent to be sued must be "unequivocally expressed." Mitchell I, 445 U.S. at 538, 100 S.Ct. 1349. This is true even when Indian tribes are suing the government for breach of its trust responsibilities. United States v. White Mountain Apache Tribe, 537 U.S. 465, 472, 123 S.Ct. 1126, 155 L.Ed.2d 40 (2003).

When a plaintiff sues the government for damages, the waiver may be found in a statute such as the Tucker Act, 28 U.S.C. § 1491, the Indian Tucker Act, 28 U.S.C. § 1505, or the Federal Tort Claims Act, 28 U.S.C. § 2671. When a plaintiff sues the government for equitable relief, waiver may be found in the Administrative Procedures Act. 5 U.S.C. § 702.¹

The Tribes agree that the government's waiver of sovereign immunity for this lawsuit is found in the APA, and that the APA waives sovereign immunity for the common-law trust claim as well as for the FLPMA claim. They also contend, and this Court initially agreed, that although the APA supplies the waiver of sovereign immunity for the common-law trust claim, all other...