U.S. v. Newmont Usa Ltd.

Decision Date21 August 2007
Docket NumberNo. CV-05-020-JLQ.,CV-05-020-JLQ.
Citation504 F.Supp.2d 1050
CourtU.S. District Court — District of Washington
PartiesUNITED STATES of America, Plaintiff, v. NEWMONT USA LIMITED and Dawn Mining Company, LLC, Defendants. Dawn Mining Company, LLC, Third-party Plaintiff, v. Ortencia Ford and Donnelly Villegos, Third-party Defendants.

Paul J. Gormley, David Rosskam, Katherine A. Loyd, Michael J. McNulty, United States Department of Justice, Washington, DC, Heidi K. Hoffman, U.S. Department of Justice, Denver, CO, Michael James Zevenbergen, U.S. Attorney's Office, Seattle, WA, for Plaintiff.

Elizabeth H. Temkin, Nathan M. Longenecker, Temkin Wielga Hardt & Longenecker LLP, Denver, CO, Michael R. Thorp, Heller Ehrman LLP, Karen M. McGaffey, Perkins Coie, Seattle, WA; for Defendants.

Mark William Schneider, Karla J. Axell, Matthew D. Diggs, Perkins Coie, Seattle, WA, for Defendants/Third-party Plaintiff.

Ortencia Ford, Wellpinit, WA, Pro se.

Bruce William Hondle, Bruce W. Hondle, PLLC, Spokane, WA, for Third-party Defendants.


QUACKENBUSH, Senior District Judge.

BEFORE THE COURT are (1) United States' Motion To Dismiss Counterclaims By Newmont and Dawn, and/or For Summary Judgment (Ct.Rec.121), and (2) Defendants Newmont USA Limited's and Dawn Mining Company, LLC's Motion for Summary Judgment. (Ct.Rec.126). These are cross-motions for summary judgment on the issue of whether the United States of America is liable under the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA") as an "owner" of the Midnite Mine Superfund Site, a former open-pit uranium mine located on the Spokane Indian Reservation in Washington State. Oral argument was heard on July 3, 2007. Assistant United States Attorney Scott J. Jordan argued on behalf of the United States of America. Michael R. Thorp representing Newmont USA Limited argued on behalf of Newmont USA Limited and Dawn Mining Company, LLC.


How the court views the facts in "this matter, and which summary judgment "lens" it uses, is complicated because the parties have each filed motions for summary judgment on the same issue. For the most part, however, the material facts are not in dispute, despite differing views of how the facts should be characterized.

The Government does not deny that it acquired ownership of the involved real property as the "conqueror" of its former occupants, infra, pps. 1059-61. The Government did not acquire title to the property by cession or treaty with any Indians or Tribes. The history of the Government's acquisition of lands formerly occupied by Indians and the Government's dealings with the Indians is concisely set forth in William C. Canby, Jr., American Indian Law (4th Ed., 2004) @ pages 18-33. The treatment and policies by the United States of the conquered Indian people could be described by the undersigned as the Flying Trapeze Policies, swinging back and forth from protection to termination as the political winds directed.

In the early to mid 1800s the United States acquired title to some lands formerly occupied by Indians through treaties "in which the tribe ceded much of the land it occupied to the United States and reserved a smaller portion to itself (hence the term reservation)". Canby @ 18-19. Such was not the case with the Spokane. Indians. Chief Garry of the Spokanes attended only as an "observer" at the 1855 Walla Walla Council between the United States led by Governor Stevens of the Washington Territory, and five thousand Indians and their Chiefs from Tribes throughout the Inland Empire, including Washington, Oregon, and Idaho. Contrary to other Chiefs, (there was more than one Chief in most Tribes) Chief Garry did not sign a treaty on behalf of the Spokane Tribe with Governor Stevens. N.W. Durham, Spokane and the Inland Empire, Vol I, page 176 (1912). In fact, following the Walla Walla Council, warriors from the Spokane Tribe and other Tribes engaged in violent and ongoing wars with the United States Army throughout the late 1850s in the areas surrounding now Spokane, Washington. The wars ended under terms dictated by Colonel George Wright to the Indians during peace councils. To show the Indians who was winning the wars, Col. Wright had Head Chief Polotkin of the Spokanes hanged after taking him hostage at a "peace council" as were many other Indians. The horses belonging to the Indians were rounded up and over 200 shot by soldiers. Col. Wright then informed the Indians as to the terms of a "Peace Treaty". Those terms did not reference land, and no Treaty was signed by the United States and the Spokane Tribes concerning ownership or occupation of land formerly occupied by the Indians. Durham, Vol. 1, pps 229-263. It is undisputed that the United States became the owner of the Spokane's lands as the "conqueror."

In 1871, Congress passed legislation which effectively terminated the entry by the United States of treaties with tribes since that legislation provided that no tribe was thereafter to be recognized as an independent nation with which the United States could make treaties. Canby @ 19. The Spokane Indian Reservation was created on January 18, 1881, by an executive order of President Rutherford B. Hayes, wherein the land was designated to be "set aside and reserved for the use and occupancy of the Spokane Indians." (United States' St. Fact, Exh. 1).1 No Congressional action was taken to establish this Reservation. During the period of American Indian law and policy commonly referred to as the period of "assimilation," the years between 1887 and 1934, the United States' Congress passed a series of acts affecting the lands of the Executive-created Spokane Indian Reservation. In the Congressional Act of May 27, 1902, the United States opened the mineral lands of the Spokane Reservation, providing that they "shall be subject to entry under the laws of the United States in relation to the entry of, mineral lands." (Dft.St.Fact, Exh. 4). In a subsequent act dated June 19, 1902, Congress directed the Secretary of the Interior to "make allotments in severalty to the Indians of the Spokane Indian Reservation in the State of Washington, ,and upon the completion of such allotments the President shall by proclamation give public notice thereof, whereupon the lands in said reservation not allotted to Indians or used or reserved by die Government, or occupied for school purposes, shall be opened to exploration, location, occupation, and purchase under the mining laws." (Dft.Exh.5). Nothing in this legislation suggested that Congress did not have full plenary authority and ownership of the Spokane Reservation lands. No subsequent Congressional action has changed the "plenary" position of the United States.

Several years later, on June 21, 1906, Congress passed an act authorizing the Secretary of the Interior to sell and convey by patent up to three hundred and sixty acres of the Spokane Indian Reservation lying at or near the junction of the Columbia and Spokane rivers for "town-site and terminal purposes." Then, on May 29, 1908, Congress passed a statute entitled an "Act [t]o authorize the Secretary of the Interior to sell and dispose of the surplus unallotted agricultural lands of the Spokane Indian Reservation, Washington, and for other purposes." (Dft.Exh.6). The Act directed the Secretary of the Interior to make allotments to all Indians having tribal rights and belonging to the Spokane Indian Reservation who had not theretofore received allotments, and directed the Secretary of Interior to classify the surplus lands as agricultural and timber lands. (Id.). Under Section 2 of the Act, surplus agricultural lands were to be opened for settlement and entry under the homestead laws by any United States citizen, Indian or not, with the net proceeds to be deposited in the United States Treasury "to the credit of the Spokane Indians". (Id.). There is no evidence in the record as to whether any monies were so deposited in the United States Treasury or if so, whether any of such monies were ever disbursed to or for the benefit of the Spokane Indians. Section 5 of the Act provided, in part, for the United States Secretary of the Interior to "sell and dispose of for the benefit of the Indians such timber upon said timber lands as in his judgment has reached maturity and is deteriorating and which, in his judgment, would be for the best interests of the Indians to sell." (Id.). By another act dated May 18, 1916, Congress authorized and directed the Secretary of the Interior to:

[L]ease ... for mining purposes unallotted mineral lands on the diminished Spokane Reservation ... for periods of twenty-five years with privileges of renewal, on such reasonable renewal "conditions as may be determined by the Secretary of the Interior, and also with reasonable conditions to be fixed by the Secretary of the Interior providing for the prosecution of mining development and operation ... and rental shall be based upon mining production, and shall be reasonable, and the proceeds of rental shall be paid into the Spokane Indian tribal fund.

(Dft.Exh.7). Finally, in 1940, Congress added a provision to the Columbia Basin Project Act authorizing the Secretary of the Interior to acquire portions of the Spokane Reservation as needed for the Grand Coulee Dam and reservoir project. 16 U.S.C. § 835d.

Pursuant to the Congressional instruction provided in the foregoing Acts of June 19, 1902 and May. 29, 1908, allotment # 156, located on the Spokane Reservation was issued to Edward Boyd on January 24, 1910. (Ct. Rec. 238, Tab A). The issued allotment states that:

[T]he UNITED STATES OF AMERICA, in consideration of the premises, has allotted, and by these presents does allot, unto the said Edward Boyd the land above described, and hereby declares that it does and will hold the land thus allotted (subject to...

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