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

• Decision Date: 28 January 2011
• Docket Number: 10–5090.,Nos. 10–5080,s. 10–5080
• Citation: 632 F.3d 1272
• Parties: EL PASO NATURAL GAS COMPANY, Appellantv.UNITED STATES of America, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

632 F.3d 1272

72 ERC 1676

394 U.S.App.D.C. 176

EL PASO NATURAL GAS COMPANY, Appellant

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

Nos. 10–5080

10–5090.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 9, 2010.Decided Jan. 28, 2011.

Appeals from the United States District Court for the District of Columbia (No. 1:07–cv–00905).Jerry Stouck argued the cause for appellant El Paso Natural Gas Company. David A. Taylor, pro hac vice, argued the cause for Navajo Nation. With them on the briefs were Robert Charrow, Maggie Sklar, Thomas L. Sansonetti, Troy A. Eid, William G. Myers III, Christopher J. Neumann, and Paul E. Frye.Michael T. Gray, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief was Robert H. Oakley, Attorney. Eric G. Hostetler, Attorney, and R. Craig Lawrence, Assistant U.S. Attorney, entered appearances.Before: ROGERS and TATEL, Circuit Judges, and WILLIAMS, Senior Circuit Judge.Opinion for the Court filed by Circuit Judge TATEL.TATEL, Circuit Judge:

This case concerns two sites on Navajo tribal lands that the Navajo Nation alleges were contaminated by World War II and Cold War era uranium mining. Pursuant to the Uranium Mill Tailings Remediation and Control Act (UMTRCA), which created a mechanism to cleanup after such activities, the Navajo Nation asked the Department of Energy to remediate both sites. The department refused, and the district court declined to review that decision, relying on a provision of UMTRCA stating that “designations made, and priorities established, by the Secretary under this section shall be final and not subject to judicial review.” For the reasons set forth in this opinion, we affirm.

I.

In the 1930s and 40s, “the uranium milling industry was under the dominant control of the Federal Government. At that time, uranium was being produced under Federal contracts for the Government's Manhattan Engineering District and Atomic Energy Commission program.” H.R.Rep. No. 95–1480, pt. 1, at 11 (1978), 1978 U.S.C.C.A.N. 7450. The uranium mining process results in copious amounts of radioactive waste in the form of uranium mill tailings, a sandy waste produced during ore milling (from which only one to five pounds of usable uranium is extracted from every two thousand pounds of mined ore). Id. (noting that nearly ninety million tons of such waste “are attributable to Federally-induced production”). Until “the early 1970's[,] there was little official recognition of the hazards presented by these tailings.” Id. As a result, “mill tailings were left at sites, mostly in the Southwest, in an unstable and unprotected condition,” creating a substantial threat to public health. Id.

In 1978, Congress passed UMTRCA, a comprehensive statute directing DOE, in cooperation with states and Native American tribes, to undertake remedial action of all sites contaminated by uranium “produced for sale to any Federal agency prior to January 1, 1971 under a contract with any Federal agency.” 42 U.S.C. § 7911(6)(A). UMTRCA gave the Secretary of Energy one year from November 8, 1978, the statute's effective date, to “designate” uranium “processing sites” where remediation was required and to prioritize those sites. § 7912(a)(1), (a)(3)(b). Specifically, the statute required the Secretary to designate twenty-two listed sites, as well as any “other processing sites within the United States which he determine[d] require[d] remedial action to carry out the purposes of [UMTRCA].” § 7912(a)(1). UMTRCA defines “processing site” to include both the mill site itself and “any other real property or improvement thereon which—(i) is in the vicinity of such site, and (ii) is determined by the Secretary ... to be contaminated with residual radioactive materials derived from such site.” § 7911(6).

As to “vicinity” sites—the subject of this litigation—UMTRCA directs the Secretary to include such properties in the initial first year designation process but allows him to make additional inclusions after the one year deadline. In particular, section 7912(e) provides:

(1) The designation of processing sites within one year after November 8, 1978, under this section shall include, to the maximum extent practicable, [vicinity properties].

(2) Notwithstanding the one year limitation contained in this section, the Secretary may, after such one year period, include any [vicinity property] as part of a processing site designated under this section if he determines such inclusion to be appropriate to carry out the purposes of [UMTRCA].

§ 7912(e). Central to the issue before us, UMTRCA also contains a bar on judicial review. Section 7912(d) provides that “[t]he designations made, and priorities established, by the Secretary under this section shall be final and not subject to judicial review.”

Two other statutory provisions are relevant to this case. First, UMTRCA directs the Secretary to enter into cooperative agreements with Native American tribes regarding cleanup of designated processing sites on tribal lands. § 7915. It contains a parallel provision requiring agreements with states for sites not on tribal lands. § 7913. Second, UMTRCA requires the Secretary to “encourage public participation and, where appropriate, [to] hold public hearings” in carrying out the Act. § 7921.

This case concerns one of the sites expressly listed in section 7912(a)(1)—the Tuba City, Arizona, uranium mill, which is located on Navajo Nation tribal lands. The Secretary designated this site in 1979, entered into a cooperative agreement with the Navajo Nation in 1985, and completed cleanup in 1990.

In the early 2000s, the Navajo Nation discovered that two nearby properties, the Tuba City Landfill and the Highway 160 Site, were also contaminated and alleged that the Tuba City Mill was the source of the contamination. In December 2003, the Navajo Nation sent a letter to the Secretary explaining that the sites needed remediation and requesting a meeting. In April of the following year, the Secretary replied that DOE believed the sites had been contaminated by a source other than the Tuba City Mill and so failed to qualify for UMTRCA remediation. The Secretary nonetheless agreed to set up a meeting.

The Navajo Nation shared the Secretary's letter with the El Paso Natural Gas Company, the successor in interest to the company that had run uranium mining operations at the Tuba City Mill. El Paso, concerned about its own possible liability for harms caused by unremediated sites, brought suit against DOE and several other federal agencies. Alleging, among other things, that DOE's denial of the Navajo Nation's request to include the two sites as vicinity properties was arbitrary and capricious, El Paso asked the district court to issue a judgment declaring that DOE had failed to adhere to its legal obligation and that the Department, not El Paso, is “legally liable for the remediation costs and damage to the environment resulting from residual radioactive material or other deleterious or hazardous substances that emanated ... from the Mill.” Amended Compl. ¶ 102. As part of this claim, El Paso also alleged that DOE violated UMTRCA's public participation requirement by failing to hold a public meeting before deciding that the Tuba City Landfill and the Highway 160 Site did not qualify for UMTRCA remediation. Id. ¶ 100.

The district court dismissed the request for declaratory relief for want of subject matter jurisdiction, concluding that El Paso's claim was covered by section 7912(d)'s bar on judicial review. El Paso Natural Gas Co. v. United States, 605 F.Supp.2d 224, 225 (D.D.C.2009). Relying on the fact that the definition of vicinity property is part of the definition of processing site, the court reasoned that the decision to “include” a vicinity property pursuant to section 7912(e)(2) is “nothing more than to designate the scope—or boundaries—of the processing site.” Id. at 228. In addition, the court pointed out that section 7912(d), the jurisdiction-stripping provision, contains no temporal limits and appears to apply to all designations made pursuant to section 7912. Id. The district court then responded to El Paso's argument that “even if DOE's purported decision to not include the Properties as part of the Mill processing site was in fact a designation, it was a not a designation ‘made,’ but a designation ‘not made,’ and therefore § 7912(d) is inapplicable.” Id. at 229. The court rejected this argument on the ground that “designations made” include designations not made because “any decision to take an affirmative action necessarily is a decision to not take its inverse.” Id.

Although the district court indicated that section 7912(d) might not foreclose judicial review of El Paso's public participation claim, the court nonetheless dismissed that claim for want of final agency action pursuant to the Administrative Procedure Act. 5 U.S.C. § 704 (authorizing review of “final agency action”). The court explained that DOE's April letter did not qualify as final agency action because it merely “informed the Navajo Nation of DOE's understanding of the relevant state of affairs” and agreed to set up a meeting. Id. at 229 n. 8.

The district court granted the Navajo Nation's motion to intervene. El Paso now appeals, arguing that we have jurisdiction despite section 7912(d) and that the April letter constituted final agency action. Because, for the reasons explained below, we agree that the district court lacked jurisdiction, we have no need to reach the question of final agency action with regard to El Paso's arbitrary and capricious claim. Trudeau v. FTC, 456 F.3d 178, 183–85 (D.C.Cir.2006) (explaining that the APA's final agency action requirement is non-jurisdictional). Nor need we reach that question with regard to El Paso's public participation claim because, by asserting in its opening brief that this claim was inseverable from the arbitrary and capricious claim, the...