El Paso Natural Gas Co. v. U.S.

• Decision Date: 27 March 2011
• Docket Number: Civil Case No. 07–905 (RJL).
• Citation: 774 F.Supp.2d 40
• Parties: EL PASO NATURAL GAS COMPANY, Plaintiff,The Navajo Nation, Intervenor–Plaintiff,v.UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — District of Columbia

774 F.Supp.2d 40

EL PASO NATURAL GAS COMPANY, Plaintiff,The Navajo Nation, Intervenor–Plaintiff,

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

Civil Case No. 07–905 (RJL).

United States District Court, District of Columbia.

March 27, 2011.

Jerry Stouck, Greenberg Traurig, LLP, Robert Lawrence Shapiro, Hughes Hubbard & Reed LLP, Washington, DC, Thomas L. Sansonetti, Holland & Hart, LLP, Cheyenne, WY, for Plaintiff.Paul E. Frye, Frye Law Firm, PC, Albuquerque, NM, David A. Taylor, Navajo Nation Department of Justice, Window Rock, AZ, for Intervenor–Plaintiff.Eric G. Hostetler, United States Department of Justice, Maureen Elizabeth Rudolph, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

RICHARD J. LEON, District Judge.

Intervenor-plaintiff Navajo Nation brings this suit against the United States in connection with a former uranium mill located on the Navajo Nation Reservation near Tuba City, Arizona. Specifically, intervenor-plaintiff alleges violations of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901, et seq., the Administrative Procedure Act (“APA”), 5 U.S.C. § 701, et seq., the Uranium Mill Tailing Radiation Control Act (“UMTRCA”), 42 U.S.C. § 7901, et seq., the American Indian Agriculture Resources Management Act (“AIARMA”), 25 U.S.C. § 3701, et seq., the Indian Lands Open Dump Cleanup Act (“ILODCA”), 25 U.S.C. § 3901, et seq., the federal Clean Water Act (“CWA”), 33 U.S.C. § 1251, et seq., various Navajo Nation laws and the United States' trust duty to the Navajo Nation. Currently before this Court is defendant's motion for partial dismissal. For the reasons set forth below, defendant's motion is GRANTED.

BACKGROUND

The complaint in this case was originally filed by El Paso Natural Gas Company (“EPNG”) on May 15, 2007, EPNG Compl. [# 1], with an amended complaint filed on July 12, 2007, EPNG Am. Compl. [# 7]. EPNG alleges violations of the RCRA, UMTRCA and APA. EPNG Am. Compl. ¶¶ 88–112. In particular, EPNG's UMTRCA claim alleges that the United States and other federal defendants failed to fulfill their obligations under UMTRCA in connection with certain properties alleged to be contaminated with residual radioactive waste. See EPNG Am. Compl. ¶¶ 88–102. EPNG claimed jurisdiction in this Court under the APA. See id. The defendants moved to dismiss the APA/UMTRCA claims for lack of subject matter jurisdiction, and on March 31, 2009, this Court granted the defendants' motion. See El Paso Natural Gas Co. v. United States, 605 F.Supp.2d 224 (2009). The defendants have not moved to dismiss EPNG's RCRA claims. See United States Mot. Dismiss, Apr. 18, 2008[# 19]. After this Court issued a Final Judgment as to the APA/UMTRCA claims, EPNG filed an appeal on March 24, 2010 to our Circuit. EPNG Notice of Appeal [# 43].¹

The Navajo Nation (or the “Tribe”) filed an intervenor-complaint, alleging ten separate claims of relief against the United States (“defendant”) on March 5, 2010. Intervenor–Compl. by the Navajo Nation, Mar. 5, 2010 (“Tribe Compl.”) [# 41]. On March 30, 2010, the Tribe, which alleges, inter alia, the same violations—Fifth and Sixth Claims of Relief—raised by EPNG's APA/UMTRCA claims, joined EPNG in appealing this Court's March 31, 2009 decision. Tribe Notice of Appeal [# 46]. Of the remaining eight counts, the Tribe has conceded its claim under the CWA—Seventh Claim of Relief—as it failed to provide the requisite notice prior to suit. Tribe's Opp'n to United States Mot. Dismiss (“Tribe Opp'n”) at 15.² Further, defendant does not move to dismiss the Tribe's claim under the RCRA—First Claim of Relief. Remaining are two additional claims brought under UMTRCA, as well as various other claims brought under federal and tribal law.

The background in this case was in large part set forth in this Court's March 31, 2009 Opinion. See El Paso Natural Gas Co. v. United States, 605 F.Supp.2d 224, 225–27 (2009). By way of summary, from 1955 to 1968, the United States contracted with EPNG, and its predecessor Rare Metals Corporation, to mine, mill and process uranium and vanadium ore, which were used in the manufacture of nuclear weapons. Tribe Compl. ¶ 28. The uranium processing mill (the “Mill”) near Tuba City, Arizona was located on the Navajo Nation Reservation and near the Hopi Reservation. See Tribe Compl. ¶¶ 4, 28. During its years of operation, the Mill generated radioactive mill tailings, a type of radioactive waste. See Tribe Compl. ¶¶ 4–8. Two additional sites, located near Tuba City, are also alleged to be contaminated with radioactive waste. The first of these sites is the Highway 160 Dump Site, located across Highway 160 from the Mill. Tribe Compl. ¶ 9. In February 2009, Congress appropriated $5 million towards the cleanup of the Highway 160 Dump Site. Tribe Compl. ¶ 12. The second site is the Tuba City Open Dump (“TCOD”), located on both Hopi and Navajo Reservations. Tribe Compl. ¶ 13. TCOD was operated by the Bureau of Indian Affairs (“BIA”) and ceased accepting new waste in 1997. Tribe Compl. ¶ 13. Since 1995, BIA and other authorities have been investigating TCOD “at a cost of several millions of dollars.” Tribe Compl. ¶ 14. To date, however, no remedial action has been taken to address contamination at the site. Tribe Compl. ¶ 15.

In 1978, Congress enacted UMTRCA “to ‘stabilize and control’ the radioactive waste generated by the uranium mill operations that supported the United States' Cold War efforts.” El Paso Natural Gas Co., 605 F.Supp.2d at 225–26 (citing 42 U.S.C. § 7901(a)-(b)). Pursuant to UMTRCA, 42 U.S.C. §§ 7911, 7912, the Department of Energy (“DOE”) designated the Mill as a “processing site,” and in 1985 entered into the “Cooperative Agreement between the United States Department of Energy, the Navajo Tribe of Indians and Hopi Tribe of Indians.” DOE Cooperative Agreement No. DE–FC04–85AL26731 (“Coop. Agmt.”). Thereby, DOE took responsibility for “selecting and performing remedial actions at the Tuba City millsite and vicinity properties.” Coop. Agmt. at 4.

Various treaty obligations and statutes, particularly AIARMA and ILODCA, further define the relationship between defendant and the Tribe in relation to this suit. In 1850 the United States and Navajo Nation ratified a treaty in which the Tribe submitted to the federal government the exclusive right to regulate trade and dealings with the Navajo. Treaty with the Navajo, art. I, Sept. 9, 1849, ratified Sept. 9, 1850, 9 Stat. 974 (“1850 Treaty”). In return the federal government promised to “so legislate and act as to secure permanent prosperity and happiness of said [Navajo] Indians.” Id. art. XI. In addition, under AIARMA defendant has undertaken the duty to “protect, conserve, utilize, and manage Indian agricultural lands.” 25 U.S.C. § 3701(2). Indeed, AIARMA stipulates that such management be conducted in accordance with tribal law and ordinances. § 3712(a). Finally, under ILODCA defendant has undertaken the duty to work with Indian tribal governments in evaluating and prioritizing plans to close and maintain open dumps on Indian lands. 25 U.S.C. § 3904.

The Tribe argues that these statutory obligations, together with various Navajo tribal laws made applicable through AIARMA and defendant's general trust duty owed to the Navajo Nation create enforceable duties, which defendant has failed to fulfill. In response, defendant argues that: (1) the Tribe has waived its right to sue under UMTRCA; (2) none of the federal statutes invoked by the Tribe create a right of action or waive defendant's sovereign immunity; (3) the Tribe cannot bring any of its claims under the APA as it has failed to allege any final agency action; and (4) the Tribe has failed to identify a specific trust duty that defendant has failed to fulfill. I agree, and defendant's motion to dismiss must, therefore, be GRANTED.

ANALYSIS

I. Standard of Review

As courts of limited jurisdiction, federal courts “have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto.” Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986). Under Federal Rule of Civil Procedure 12(b)(1), therefore, “the plaintiff bears the burden of establishing the factual predicates of jurisdiction by a preponderance of the evidence.” Lindsey v. United States, 448 F.Supp.2d 37, 42 (D.D.C.2006) (quoting Erby v. United States, 424 F.Supp.2d 180, 182 (D.D.C.2006)). In other words, a court may dismiss a complaint for lack of subject matter jurisdiction only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Richardson v. United States, 193 F.3d 545, 549 (D.C.Cir.1999) (quoting Caribbean Broad. Sys., Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1086 (D.C.Cir.1998)).

Furthermore, under the principle of sovereign immunity, “the United States may not be sued without its consent.” United States v. Mitchell (“ Mitchell II ”), 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). This principle presents a jurisdictional prerequisite. Id. Thus, “[a]bsent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). “A waiver of sovereign immunity ‘cannot be implied but must be unequivocally expressed.’ ” United States v. Mitchell (“ Mitchell I ”), 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (quoting United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969)).

Finally, under Rule 12(b)(6), dismissal of a complaint is appropriate if plaintiff's factual allegations are insufficient to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Although the complaint “is construed liberally in the plaintiffs' favor, and [the court must] grant ...