El Paso Natural Gas Co. v. United States

• Decision Date: 04 April 2014
• Docket Number: Nos. 12–5156,12–5157.,s. 12–5156
• Citation: 750 F.3d 863
• Parties: EL PASO NATURAL GAS COMPANY, Appellant. Navajo Nation, Appellant v. UNITED STATES of America, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

750 F.3d 863

EL PASO NATURAL GAS COMPANY, Appellant.Navajo Nation, Appellant

v.UNITED STATES of America, et al., Appellees.

Nos. 12–5156, 12–5157.

United States Court of Appeals,District of Columbia Circuit.

Argued Sept. 23, 2013.

Decided April 4, 2014.

Appeals from the United States District Court for the District of Columbia (No. 1:07–cv–00905).

Christopher J. Neumann argued the cause for appellant El Paso Natural Gas Company. With him on the briefs were Troy A. Eid and Jerry Stouck.

Paul E. Frye argued the cause for appellant Navajo Nation. With him on the briefs was David A. Taylor.

Michael T. Gray, U.S. Department of Justice, argued the cause and filed the brief for federal appellees.

Before: BROWN, Circuit Judge, and EDWARDS and SILBERMAN, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge EDWARDS.

EDWARDS, Senior Circuit Judge:

Table of Contents

Introduction

Summary

RCRA Claims Relating to the Dump

The District Court's Dismissal of Appellants' RCRA Claims as to the Dump “With Prejudice”

RCRA Claims Relating to the Highway 160 Site

The Government's Contingent RCRA Counterclaim

The Tribe's Mill Tailings Act Claims

The Tribe's Remaining Statutory Claims

The Tribe's Breach of Trust Claim

I. Background

A.

The Mill

B.

The Highway 160 Site

C.

The Dump

II. Analysis

A.

RCRA Claims as to the Dump

1.

CERCLA § 104 Authority

2.

Frey's “Objective Indicator” Limitation

3.

Temporal Limitation to “Challenges”

4.

When a Claim Qualifies as a “Challenge”

5.

The District Court's Dismissal “With Prejudice”

B.

RCRA Claims as to the Highway 160 Site

C.

The Government's Contingent RCRA Counterclaim

D.

Mill Tailings Act

E.

The Indian Dump Cleanup Act and the Indian Agricultural Act

1.

Private Right of Action

2.

APA

F.

Breach of Trust

1.

Governing Principles

a.

Trust Claims under the Indian Tucker Act

b.

Circuit Precedent

2.

The Tribe's Arguments

a.

25 U.S.C. § 640d–9(a)

b.

The Indian Dump Cleanup Act, the Indian Agricultural Act, and the Mill Tailings Act

c.

Other Statutes

III. Conclusion

This is a weighty case, involving numerous claims concerning environmental hazards at three sites on Navajo land near Tuba City, Arizona. The locations in dispute are (1) the Tuba City Uranium Processing Mill Site (“Mill”), which was the site of a Cold War mining operation that left behind a radioactive byproduct known as mill tailings; (2) the Tuba City Open Dump (“Dump”), a federal waste facility located on both Hopi and Navajo land that was operated by the United States Bureau of Indian Affairs (“BIA”) until 1997; and (3) the Highway 160 Dump Site (“Highway 160 Site”), which is situated near the Mill and has also been used as a dump.

The action giving rise to this appeal was initiated in 2007 by Appellant El Paso Natural Gas Company (“El Paso”), the successor-in-interest to the corporation that mined uranium at the Mill. El Paso filed a complaint in District Court against the United States and various federal agencies and officials raising claims under two statutes: the Uranium Mill Tailings Radiation Control Act of 1978 (“Mill Tailings Act”), 42 U.S.C. §§ 7901–7942, and the Solid Waste Disposal Act, which is commonly referred to as the Resource Conservation and Recovery Act of 1976 (“RCRA”), 42 U.S.C. §§ 6901–6992k. Appellant Navajo Nation (“Tribe” or “Nation”) intervened and asserted parallel claims under the Mill Tailings Act and RCRA, as well as additional claims against the Government.

In 2009, the District Court dismissed El Paso's Mill Tailings Act claim without discovery and certified its ruling for interlocutory appeal. El Paso Natural Gas Co. v. United States (El Paso I), 605 F.Supp.2d 224 (D.D.C.2009). This court affirmed the judgment of the District Court. El Paso Natural Gas Co. v. United States (El Paso II), 632 F.3d 1272 (D.C.Cir.2011).

The District Court then dismissed the balance of Appellants' claims in two memorandum opinions. The trial court first dismissed all of the Tribe's claims, except those arising under RCRA. El Paso Natural Gas Co. v. United States (El Paso III), 774 F.Supp.2d 40 (D.D.C.2011). The trial court next dismissed all of Appellants' RCRA claims relating to the Dump for want of jurisdiction due to an administrative settlement between the BIA and the United States Environmental Protection Agency (“EPA”) that was formalized three years after the start of litigation. The District Court also dismissed the RCRA claims relating to the Highway 160 Site as moot. El Paso Natural Gas Co. v. United States (El Paso IV), 847 F.Supp.2d 111 (D.D.C.2012). An order accompanying the decision denied a motion for discovery and dismissed the RCRA claims regarding the Dump and the Highway 160 Site with prejudice. These consolidated appeals followed.

Given the number of statutes, claims, and locations at issue, we have summarized below the issues on appeal and our holdings with respect to each question before the court.

Summary

RCRA Claims Relating to the Dump. The District Court dismissed these claims after EPA and the BIA entered into administrative settlement in 2010 under § 104 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), 42 U.S.C. §§ 9601–9675. The District Court held that this agreement triggered the jurisdictional bar in CERCLA § 113(h), which forecloses courts from hearing “challenges to removal or remedial action selected under [CERCLA § 104].” El Paso IV, 847 F.Supp.2d at 116–23 (citing 42 U.S.C. § 9613(h)). Challenging this ruling on four fronts, Appellants argue (1) that the Government lacked CERCLA § 104 authority because the waste at the Dump was naturally occurring; (2) that the Administrative Settlement cannot trigger § 113(h) because the settlement lacks an objective indicator of when, if ever, remediation will occur; (3) that their RCRA claims cannot be “challenges” under § 113(h) because they were filed before the CERCLA response action; and (4) that their claims are also not “challenges” because the enforcement of 40 C.F.R. Part 258 landfill regulations will neither delay nor affect the CERCLA response action. In light of Appellants' own pleadings and the clear, if troubling, sweep of § 113(h), we are obliged to affirm the dismissal of the RCRA claims related to the Dump.

The District Court's Dismissal of Appellants' RCRA Claims as to the Dump “With Prejudice.” Appellants argue that, even if their RCRA claims must be dismissed pursuant to CERCLA § 113(h), the dismissal should have been without prejudice. We agree. We therefore reverse the dismissal “with prejudice” of Appellants' RCRA claims that relate to the Dump and remand with instructions to the District Court to enter judgment against Appellants “without prejudice.”

RCRA Claims Relating to the Highway 160 Site. The District Court dismissed the Tribe's RCRA claim as moot because Congress authorized and appropriated funds for a cleanup at the site in 2009, and because the Tribe assumed responsibility for the cleanup and agreed to a release of liability. El Paso IV, 847 F.Supp.2d at 123–24. It then concluded that El Paso did not have standing to pursue a RCRA claim independent of the Tribe. Id. at 124. Appellants argue that the scope of the waiver is much narrower than the District Court thought and does not reach groundwater remediation, which could be the relief obtained under RCRA. We agree with the Tribe that its RCRA claims at the Highway 160 Site are not moot. We therefore vacate the District Court's dismissal of Appellants' RCRA claims as to the Highway 160 Site and remand the case so that these claims can be considered on the merits. Because we conclude that the Tribe's RCRA claims at the Highway 160 Site are not moot, we need not consider whether El Paso has standing.

The Government's Contingent RCRA Counterclaim. The Government filed a counterclaim against El Paso under RCRA. The District Court dismissed the counterclaim without prejudice. El Paso argues that the dismissal should have been with prejudice. We disagree and affirm the judgment of the District Court.

The Tribe's Mill Tailings Act Claims. The Tribe brought two claims under the Mill Tailings Act and its associated EPA regulations. See42 U.S.C. §§ 7901–7942; 40 C.F.R. Part 192. The District Court granted the Government's Rule 12(b)(1) motion to dismiss because it thought the Mill Tailings Act precludes judicial review of claims that fall within the scope of the mandatory waiver in § 7915(a)(1). El Paso III, 774 F.Supp.2d at 52. This conclusion was incorrect because the Mill Tailings Act does not preclude review of all claims under the Administrative Procedure Act (“APA”). We nevertheless affirm the dismissal on other grounds. The terms of the waiver executed by the Tribe effectively foreclose its Third Claim for Relief. And the Tribe's Fourth Claim for Relief fails to state a cause of action under the APA.

The Tribe's Remaining Statutory Claims. The Tribe also sued under the American Indian Agricultural Resource Management Act (“Indian Agricultural Act”), 25 U.S.C. §§ 3701–3746, and the Indian Lands Open Dump Cleanup Act of 1994 (“Indian Dump Cleanup Act”), 25 U.S.C. §§ 3901–3908. We analyze these claims together because they present the same questions on appeal: namely, whether the statutes create private rights of action, and, if not, whether the Nation has adequately alleged an APA claim based on the Government's failure to act. With respect to the Indian Agricultural Act, the Tribe conceded in its reply brief that the Act contains no private right to sue; we also find that the Tribe failed to plead a claim that is cognizable under the APA. We reach the same conclusions with respect to the Nation's claim under the Indian Dump Cleanup Act. The statute creates agency obligations, but it does not focus on the rights of protected parties. Therefore, no right of action can be implied in the Act. And the Tribe's claim raises no viable action under the APA because it does not allege that the Government failed to act with respect to...