El Paso Natural Gas Co. v. United States

Decision Date15 August 2017
Docket NumberNo. CV-14-08165-PCT-DGC,CV-14-08165-PCT-DGC
PartiesEl Paso Natural Gas Company LLC, Plaintiff, v. United States of America, et al., Defendants.
CourtU.S. District Court — District of Arizona

Plaintiff El Paso Natural Gas Company LLC brings claims against Defendants United States of America, the Department of the Interior, the Bureau of Indian Affairs, the U.S. Geological Survey, the Department of Energy, and the Nuclear Regulatory Commission (collectively, the "United States") under §§ 107 and 113 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). El Paso seeks to recover response costs incurred in remediating 19 historical uranium mines located on the Navajo Reservation (the "Mine Sites"). Doc. 55, ¶¶ 1-2.

El Paso has moved for summary judgment on its claim that the United States is an "owner" of the Mine Sites under CERCLA. The Court previously resolved some of the arguments made in the parties' summary judgment briefing, but called for additional briefing on the owner issue. See El Paso Nat. Gas Co. LLC v. United States, No. CV-14-08165-PCT-DGC, 2017 WL 2405266 (D. Ariz. June 2, 2017). The parties have now provided further briefing. Docs. 130, 133.

The parties stipulate that the United States has owned fee title to the Mine Sites since at least 1952. Doc. 83, ¶¶ 23-24. The United States argues, nonetheless, that is not an owner within the meaning of CERCLA because its ownership interest is limited - it holds reservation land in trust for the benefit of the Navajo Nation.

After considering the broad remedial purposes of CERCLA, the ordinary meaning of property ownership, the nature of the Navajo Nation and United States interests in reservation land, and other relevant authorities, the Court concludes that the United States is an owner under CERCLA. Because further factual development is needed, the Court cannot at this time determine whether the United States is entitled to a limit on its liability under CERCLA § 107(n) based on its role as a fiduciary.

I. CERCLA Owner.

The Court's previous order noted that the Ninth Circuit has looked to the relevant common law to identify an owner under CERCLA, and directed the parties to brief the federal law that applies to reservation lands. El Paso, 2017 WL 2405266 at *5-6. Although the Court continues to find federal statutory and common law relevant, and will consider it in this order, the Court also concludes that the remedial purposes of CERCLA and the ordinary meaning of property ownership are important in this case. The Ninth Circuit cases cited in the Court's previous order considered whether a person other than the fee title holder could be an owner under CERCLA, and looked to common law for the answer. See Long Beach Unified Sch. Dist. v. Dorothy B. Godwin California Living Tr., 32 F.3d 1364 (9th Cir. 1994); City of Los Angeles v. San Pedro Boat Works, 635 F.3d 440 (9th Cir. 2011). The question in this case is the reverse - whether a fee title holder can be deemed a non-owner for purposes of CERCLA. On this basic question, and after reviewing the parties' supplemental briefing, the Court finds the purposes of CERCLA and the ordinary meaning of "owner" to be highly relevant, as did the Tenth Circuit in the recent case of Chevron Mining Inc. v. United States, --- F.3d ---, 2017 WL 3045887, at *7 (10th Cir. July 19, 2017).

A. The Purpose of CERCLA.

The Court's conclusion that the United States is an owner under CERLCA is strongly influenced by the approach CERCLA takes to environmental cleanup. CERCLA seeks "to promote the 'timely cleanup of hazardous waste sites' and to ensure that the costs of such cleanup efforts [are] borne by those responsible for the contamination." Burlington N. & Santa Fe Ry. v. United States, 556 U.S. 599, 602 (2009) (citation omitted). To accomplish this goal, CERCLA casts the liability net broadly, capturing virtually everyone connected with the property or the contamination, with specific levels of responsibility to be assigned by the court in an equitable allocation process. As the Supreme Court has explained, "[t]he remedy that Congress felt it needed in CERCLA is sweeping: everyone who is potentially responsible for hazardous-waste contamination may be forced to contribute to the costs of cleanup." United States v. Bestfoods, 524 U.S. 51, 56 n.1 (1998) (emphasis in original; citation omitted). Liable parties include entities and individuals who may have had little or nothing to do with the actual contamination. "CERCLA is a strict liability statute in that it does not require a party to act culpably in order to be liable for clean up." Voggenthaler v. Maryland Square LLC, 724 F.3d 1050, 1061 (9th Cir. 2013). To achieve CERCLA's broad remedial goals, courts interpret the statute "liberally." Id. at 1064.

There are four types of persons liable under CERCLA: owners, operators, arrangers, and transporters. 42 U.S.C. § 9607(a). These are "broad categories" of liable persons, United States v. Atl. Research Corp., 551 U.S. 128, 134 (2007), and they can include the United States. Under § 9620(a)(1) of CERCLA, "[e]ach department, agency, and instrumentality of the United States . . . shall be subject to . . . this chapter in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under section 9607 of this title." 42 U.S.C. § 9620(a)(1). This provision waives sovereign immunity to the extent the United States is a liable party under CERCLA. El Paso, 2017 WL 2405266 at *2-4.

B. The Ordinary Meaning of "Owner."

CERLA defines "owner" as "any person owning" a facility. 42 U.S.C. § 9601(20)(A). This definition, of course, is circular. As the Ninth Circuit has noted, it "is a bit like defining 'green' as 'green.'" Long Beach, 32 F.3d at 1368. When a statute provides such a circular definition of a term, courts normally look to the term's plain and ordinary meaning. Id.

The ordinary meaning of the word "owner" is the person or entity which holds title to property. As the Tenth Circuit recently noted in Chevron Mining, "[t]he ordinary or natural meaning of 'owner' includes, at a minimum, a legal title holder." 2017 WL 3045887 at *7; see also Own, Black's Law Dictionary (10th ed. 2014) ("To rightfully have or possess as property; to have legal title to."); Owner, Black's Law Dictionary (10th ed. 2014) ("Someone who has the right to possess, use, and convey something; a person in whom one or more interests are vested. An owner may have complete property in the thing or may have parted with some interests in it (as by granting an easement or making a lease)."). "Dictionaries published around the time of CERCLA's enactment in 1980 affirm this natural meaning." Chevron Mining, 2017 WL 3045887 at 7; see Own, Black's Law Dictionary (5th ed. 1979) ("To have good legal title; to hold as property; to have a legal or rightful title to; to have; to possess."); Owner, Black's Law Dictionary (5th ed. 1979) ("The person in whom is vested the ownership, dominion, or title of property; proprietor."). "For purposes of CERCLA, then, an owner includes the legal title holder of contaminated land." Chevron Mining, 2017 WL 3045887 at *7. Because the United States holds legal title to the Mine Sites, it is the owner of the Mine Sites under the ordinary meaning of "owner."

C. The Nature of Reservation Land.

The Court's review of federal law does not alter this conclusion.

1. United States Fee Title.

The longstanding law in this country holds that the United States owns fee title to reservation land. Oneida Indian Nation of N. Y. State v. Oneida Cty., New York,414 U.S. 661, 667 (1974) ("fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign - first the discovering European nation and later the original States and the United States"). The tribes retained a limited right of occupancy, often referred to as "Indian title," that could be extinguished only by the United States and continued only at the pleasure of the United States. Id.; United States v. Newmont USA Ltd., 504 F. Supp. 2d 1050, 1062 (E.D. Wash. 2007). Over the years, the federal government entered treaties, issued executive orders, and passed legislation affecting, clarifying, and guaranteeing rights to reservation land. Additionally, the position of the United States began to be construed as a trust relationship, with the United States holding land in trust for the benefit of the tribes. Cohen's Handbook of Federal Indian Law §§ 15.03, 15.09[1][b] at 997, 1053 (Nell Jessup Newton et al. eds., 2012). The precise nature of tribal land rights depends on the language of the instrument used to convey or consolidate them. See Hynes v. Grimes Packing Co., 337 U.S. 86, 103-04 (1949); Healing v. Jones, 174 F. Supp. 211, 216 (D. Ariz. 1959).

2. The Nation's Interest in Reservation Land.

In 1868, the United States entered into a treaty granting the Navajos a reservation in the northeast corner of Arizona. Sekaquaptewa v. MacDonald, 619 F.2d 801, 803 (9th Cir. 1980). The reservation was expanded through various executive orders between 1880 and 1918. Id. The Mine Sites are all located on portions of the reservation set aside through executive order. Doc. 133 at 10.

An unconfirmed executive order granting reservation land does not convey any compensable right to native Americans. See Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 285 (1955); Healing, 174 F. Supp. at 216 ("An unconfirmed executive order creating an Indian reservation conveys no right of use or occupancy to the beneficiaries beyond the pleasure of Congress or the President."). Rights to reservation land granted by treaty or statute, however, do grant compensable rights under the Fifth Amendment. United States v. S. Pac. Transp. Co., 543 F.2d 676, 687 (9th Cir. 1976).

In 1934, Congress passed legislation to "consolidate land ownership within the boundaries of the [Navajo] Reservation." Sekaquapte...

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