Kerr-Mcgee Corp. v. Farley, Civ. 95-0438MVRLP.

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Citation88 F.Supp.2d 1219
Docket NumberNo. Civ. 95-0438MVRLP.,Civ. 95-0438MVRLP.
PartiesKERR-McGEE CORPORATION and Cyprus Foote Minerals Corporation, Plaintiffs, v. Kee Tom FARLEY, individually and on behalf of The Estate of Lucy K. Farley and Harold Kady, Sr., individually and on behalf of The Estate of Julia Mae Kady, Defendants.
Decision Date10 March 2000
88 F.Supp.2d 1219
KERR-McGEE CORPORATION and Cyprus Foote Minerals Corporation, Plaintiffs,
Kee Tom FARLEY, individually and on behalf of The Estate of Lucy K. Farley and Harold Kady, Sr., individually and on behalf of The Estate of Julia Mae Kady, Defendants.
No. Civ. 95-0438MVRLP.
United States District Court, D. New Mexico.
March 10, 2000.

Page 1220

Michael R. Comeau, Jon J. Indall, Comeau, Maldegen, Templeman & Indall, LLP, Santa Fe, NM, for Kerr-McGee Corporation, plaintiff.

Robert N. Hilgendorf, Santa Fe, NM, Tom Galbraith, Jessica Youle, Lewis & Roca, Phoenix, AZ, for Cyprus Foote Minerals Corporation, plaintiff.

John D. Robb, Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, NM, for Rio Algom Ltd, plaintiff.

Mel E. Yost, Scheuer, Yost & Patterson, Santa Fe, NM, for Union Carbide Corporation, Umetco Minerals Corporation, plaintiffs.

Kevin Gover, Williams, Janov & Cooney, PC, Albuquerque, NM, Cherie V. Daut, Shiprock, NM, for Kee Tom Farley, individually and on behalf of the Estate of Lucy K. Farley Carmelita Farley Joe, Harold Kady, Sr., defendants.


VAZQUEZ, District Judge.

THIS MATTER comes before the Court on Plaintiffs' Kerr-McGee Corporation and Cyprus Foote Mineral Corporation ("Kerr-McGee") Motion to Lift Stay and Application for Preliminary and Permanent Injunction filed August 27, 1999 [Doc. No. 40] and Unopposed Motion Requesting Oral Argument filed August 27, 1999 [Doc. No. 44]. Kerr-McGee additionally seeks costs and attorney fees associated with filing these motions. Also before the Court is Defendants' Kee Tom Farley, Estate of Lucy Farley, Harold Kady, Sr., and Estate of Julia Mae Kady ("Tribal Claimants") Motion for Summary Judgment, filed September 13, 1999 [Doc. No. 45].

Kerr-McGee asks the Court to find that the Price-Anderson Act of 1988 establishes an exclusive federal adjudicatory framework covering any alleged injury from nuclear materials. Accordingly, Kerr-McGee argues that the Navajo Nation tribal court is without jurisdiction to adjudicate claims arising under the Price-Anderson Act and this Court should enjoin the Tribal Claimants from proceeding with any such actions in Navajo Court. Tribal Claimants conversely argue that the Price-Anderson Act provides for concurrent, not exclusive, federal jurisdiction over actions arising from nuclear incidents, and the Court should find as a matter of law that tribal court jurisdiction has not been preempted by the Price-Anderson Act.

Page 1221

The Court, having considered the parties' pleadings, the applicable law, and being otherwise fully informed, finds that Kerr-McGee's Motion to Lift Stay and Application for preliminary injunction is well taken and will be GRANTED. Kerr-McGee's Motion for Attorney Fees and Costs is not well taken and will be DENIED. The Court further finds that Tribal Claimants motion for summary judgment is not well taken and will be DENIED. Pursuant to 28 U.S.C. § 1292(b) this Court sua sponte certifies this issue for interlocutory appeal.


The present motions arise after a lengthy and complex procedural history. The Tribal Claimants originally filed this wrongful death, loss of consortium, and misrepresentation action in the District Court of the Navajo Nation, Shiprock Judicial District on January 12, 1995, complaining that illness and death had arisen from radioactive emissions caused by the negligent operation of a uranium milling operation owned by Kerr-McGee and operated on tribal lands. On April 21, 1995, Kerr-McGee filed an action in this Court seeking to enjoin the tribal court proceedings and challenging tribal court jurisdiction to hear nuclear tort claims in light of the Atomic Energy Act and its Price-Anderson Act amendments. The Price-Anderson Act provides a defendant sued for "public liability actions" with an absolute right of removal from state court to federal court, but does not provide a similar removal procedure from tribal court to federal court. In its initial 1995 motion Kerr-McGee contended that notwithstanding congressional silence on tribal jurisdiction over the Price-Anderson Act, Congress had so clearly intended to occupy the entire field of nuclear regulation, thereby preempting any tribal jurisdiction over nuclear torts. On June 8, 1995 this Court denied Kerr-McGee's motion for injunctive and declaratory relief, and issued a stay in that matter pending exhaustion of tribal court adjudicative remedies. See Kerr-McGee v. Farley, 915 F.Supp. 273 (D.N.M. 1995). Specifically, this Court held that in the absence of any express tribal jurisdiction prohibition set forth in the Price-Anderson Act, the Court would presume that the Price-Anderson Act does not divest tribal jurisdiction. Id. at 277. The Court ruled that although it had federal and diversity subject matter jurisdiction over the case, the tribal exhaustion doctrine required that the tribal court be given the first opportunity to determine its own jurisdiction. Id. at 276 (citing to National Farmers Union Ins. Co. v. Crow Tribe of Indians, 471 U.S. 845, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985)); see Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987). The Court also noted that it was not deciding the substantive issue of whether the Price-Anderson Act provided the exclusive remedy in this case. Id. at 279 n. 9. On these grounds, the Court denied the relief sought and issued a stay of proceedings pending tribal exhaustion.

Following this Court's ruling, the District Court of Navajo issued an order finding tribal court jurisdiction over the tort claims asserted by the Tribal Claimants. See Farley v. Kerr-McGee, No. 103-95 Navajo D.Ct. (Aug. 1, 1996). The Navajo Court held that not only does the Price-Anderson Act not preempt tribal adjudication of the claims, but that the Price-Anderson Act does not apply at all to the Tribal Claimants' suit, and therefore, tribal court jurisdiction would not interfere with federal regulation of nuclear activity. In so holding, the Navajo Court reasoned that the Price-Anderson Act applied only when a private entity was under an indemnification agreement with the federal government, a situation not applicable to Kerr-McGee. Trial in the Navajo Court on this matter was set for April, 2000.

On June 25, 1997, the Tenth Circuit affirmed this Court's denial of injunctive and declaratory relief and application of tribal exhaustion. See Kerr-McGee v. Farley, 115 F.3d 1498 (10th Cir.1997).

Page 1222

The precise issue before the Tenth Circuit was not whether the Navajo Court had jurisdiction over the claims brought by the Tribal Claimants, but rather whether the Price-Anderson Act so obviously preempted tribal jurisdiction, such that an action in tribal court would be "patently violative of express jurisdictional prohibitions." Id. at 1502. The Tenth Circuit held that the Price-Anderson Act does not expressly prohibit the exercise of tribal jurisdiction in the absence of a statutory removal procedure from tribal to federal court. Id. at 1504-1505. The Court reasoned that exclusive federal jurisdiction is not conferred by statute unless specified explicitly. Id. at 1505. The Court further ruled, after an extensive comity analysis, that the tribal exhaustion rule dictated that a federal court should abstain from adjudicating Price-Anderson Act claims brought in tribal court until all tribal remedies had been exhausted. Id. at 1508. As such, the Tenth Circuit concluded that this Court had properly refrained from determining the merits of the jurisdictional challenge brought by Kerr-McGee. In addition, although this Court had abstained from determining whether the claims brought by Tribal Claimants fell within the Price-Anderson Act, the Tenth Circuit concluded that the asserted claims were indeed claims under the Price-Anderson Act, stating "[t]he PAA on its face provides the sole remedy for the torts alleged in this case...." Id. at 1504.


I. Summary Judgment

Summary judgment is an integral part of the Federal Rules of Civil Procedure, which are intended to "`secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 1). Under Rule 56(c), summary judgment is appropriate when the Court, viewing the record in the light most favorable to the non-moving party, determines that "there is no genuine dispute over a material fact and the moving party is entitled to judgment as a matter of law." Thrasher v. B & B Chemical Co., 2 F.3d 995, 996 (10th Cir.1993). The movant bears the initial burden of showing "there is an absence of evidence to support the nonmoving party's case." Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). Once the movant meets this burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324, 106 S.Ct. 2548. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Although the material submitted by the parties in support of and in opposition to the motion must be construed liberally in favor of the party opposing the motion, Harsha v. United States, 590 F.2d 884, 887 (10th Cir.1979), the burden on the moving party may be discharged by demonstrating to the district court that there is an absence of evidence to support the nonmoving party's case. Celotex, 477 U.S. at 325, 106 S.Ct. 2548. In such a situation, the moving party is entitled to judgment as a matter of law, "because the nonmoving party has failed...

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