White Mountain Apache Tribe v. The United States
| Decision Date | 16 December 2021 |
| Docket Number | 17-359C |
| Parties | WHITE MOUNTAIN APACHE TRIBE, Plaintiff, v. THE UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
Before the Court is the Government's Motion to Dismiss or for Summary Judgment on Plaintiff White Mountain Apache Tribe's ("Tribe") Phase I claim under the Indian Lands Open Dump Cleanup Act of 1994 ("the Act"), 25 U.S.C. §§ 3901-3908 (1994). The Government contends that the Tribe's claim should be dismissed under Rules 12(b)(1), 12(b)(6), and 12(c) of the Rules of the United States Court of Federal Claims ("RCFC"). Alternatively, the Government asks the Court to grant summary judgment in its favor pursuant to RCFC 56(c). Without addressing all of the Government's arguments, the Court determines it lacks subject-matter jurisdiction over the Tribe's claim since the Act imposes no specific fiduciary obligations upon the Government. Accordingly, the Government's Motion to Dismiss is GRANTED pursuant to RCFC 12(b)(1), and its alternative request for summary judgment is DENIED AS MOOT.
The facts relevant to the Tribe's Phase I claim are largely undisputed. The Tribe resides on and is the beneficial owner of the Fort Apache Indian Reservation ("Reservation") in eastern Arizona. Through its Tribal Public Works Department ("Public Works") and with the help of its Environmental Planning Office ("EPO") and other tribal governmental authorities, it regulates solid waste disposal on the Reservation. See Open Dump Cleanup Project Jan. 31, 2005 at 6, ECF No. 66-3; Integrated Solid Waste Mgmt. Plan 2019-2024 at 11, ECF No. 66-5. Open dumps are, and have been, a consistent problem on the Reservation whether contributed to by Tribe members, the tribal government, non-Tribe members (both residents and visitors), or the federal government. See, e.g., Solid Waste Mgmt. Plan Aug. 1994 at 5, 38, ECF No. 66-2 (); ECF No. 66-5 at 17, 21; Letter from Brenda Pusher-Begay (EPO) to Alfred Brooks (Public Works) (Jan. 9, 2017) at 2, 4, ECF No. 66-8 ().
In the early 1990s, the Indian Health Service ("IHS"), the Bureau of Indian Affairs ("BIA"), and the Tribe began closing open dumps on the Reservation, some containing BIA waste. See ECF No. 66-2 at 3 8, 40-41. These federal agencies, as well as the U.S. Department of Housing and Urban Development and the U.S. Department of Agriculture, each provided funds through grants or loans for constructing the Tribe's landfill. See id. at 84, 87;Resol.No. 02-96-036, ECF No. 66-18. With the construction of the landfill, all remaining open waste dumps were supposed to close. Req. for Release of Funds and Certification at 2, ECF No. 66-19. By 1998, 15 of 24 identified open dumps had been permanently closed. Letter of Ronnie Lupe (Chairman) to Benjamin Nuvamsa (BIA) (Feb. 26, 1998) at2, ECF No. 66-24. Over the next decade, the Tribe used its own funds and contributions from BIA and IHS, as well as funds from Environmental Protection Agency ("EPA") grants, to inventory and clean up remaining dumps. See, e.g., ECF No. 66-3 at 25; IHS Funding Spreadsheet at 2, 5, ECF No. 66-25; Letter from EPO to Bernie Hinton (BIA) (Mar. 21, 2002), ECF No. 66-26; STARS PDS Narrative at 3, ECF No. 66-27; Gen. Assistance Program Close-Out Report 10/1/2010- 9/30/2012 at 2-3, 5, ECF No. 66-28.
Continued illegal dumping caused other dumps to spring up, however, and the number of open dumps fluctuated over the years. See ECF No. 66-2 at5;ECF No. 66-5 at 20-21. In March 2016, the Tribe's open dump inventory identified eight open dumps, and by October 2016 that number skyrocketed to 85. See WMAT Regulated Facilities List at 5, ECF No. 66-29; Email from Brenda Pusher-Begay (EPO) to Orlando Tessay (Oct. 7, 2016) at 2-5, ECF No. 66-30. In June 2020, well before the Tribe first filed its Complaint, HIS completed its own nationwide resurvey of open dumps on Indian land and concluded that the Reservation had approximately 45 visible open dump sites. Def's Resps. to Pl's First Set of Interrogs.: Indian Health Service at 5, ECF No. 66-34. Presumably included among these open dumps is the Sunrise Landfill, which the Government has acknowledged may contain federal waste not cleaned up in prior dump closure efforts. See Mem. of Points & Auth. in Support of Mot. to Dismiss or for Summ. J. at 15-16, ECF No. 66-1; Ltd. Subsurface Investigation: Fort Apache Agency Sunrise Ski Resort Dump site at 4, ECF No. 66-43 ().
Financial assistance from the Government related to all manner of issues, including open dumps, has flowed to the Tribe throughout the years. Between 1982 and 2019, UTS gave approximately $94.5 million in funding to the Tribe, with at least $561, 500 of that amount dedicated to cleaning up open dumps.[1] -See ECF No. 66-25 at 2 (). Additionally, UTS provided $140, 000 for the Tribe's White river Landfill expansion in 2018. ECF No. 66-25 at 5. Between 2002 and 2019, EPA also provided over $3 million in General Assistance Program ("GAP") grants which were used for cleaning up open dumps, among other waste related causes. Federal Agency Funding Related to Reservation Sanitation at 2, ECF No. 66-37; see EPA Notices of Award 2006 - 2019, ECF No. 66-33; EPA Commitment Notices 2002-2005, ECF No. 66-36. Recently, the Tribe requested additional IHS funds for landfill expansion. Letter from Colbert G. Burnette (Tribal Engineer) to Lorenzo Santana (IHS) (June 14, 2019) at 5, ECF No. 66-39.
B. Procedural Background
On March 15, 2017, the Tribe filed its Complaint, alleging the United States, as trustee of the Tribe's "funds, land, timber and other assets," had breached its fiduciary duties to the Tribe. See Pl's Compl. ¶ 1, ECF No. 1. The bulk of the Complaint's allegations relate broadly to mismanagement of trust funds and timber resources, although it also contains allegations regarding dam safety, mineral resources, environmental contamination, rights-of-ways, leases, and grazing See id. ¶¶ 29-60. The Tribe's allegations relevant to open dumps are contained in its one-paragraph environmental contamination claim, which alleges that "[s]ome Reservation trust lands have been contaminated by non-Tribal entities with hazardous waste, pollution, and other harmful substances." Id. ¶ 15. The Complaint also cites the Act, amongst a slew of other statutes, as supporting the Tribe's claims. Id. ¶20.
The Government first moved to dismiss the Tribe's claims on July 14, 2017. See Def's Mot. to Dismiss, ECF No. 9. The court denied the motion as to the Tribe's trust fund, dam safety, minerals, contamination, rights-of-way, and leases allegations, and granted the Government's motion as to the Tribe's grazing and forestry claims.[2] Op. & Order at 9-10, 14, ECF No. 22. Nine months later the Government filed a Motion to Certify Interlocutory Appeal on the Tribe's dam claims, which the court denied. See White Mountain Apache Tribe v. United States, No. 17-359 L, 2018 WL 6293242 (Fed. Cl. Dec. 3, 2018).
Moving forward, the court divided this case into phases and allowed jurisdictional discovery on the Tribe's Phase I minerals, leases, rights-of-way, and contamination claims. See ECF No. 22 at 10; Scheduling Order, ECF No. 31; Joint Mot. for Enlargement of Time ¶ 2, ECF No. 60; Order, ECF No. 61. Following discovery, the Tribe withdrew its minerals, leases, rights-of-way, and non-dump contamination claims, leaving only an open dump claim set forth in the court-ordered claim specification it produced on September 1, 2020. See Email from Brian Chestnut (PI. 's Counsel) to Matthew Marinelli (ENRD) (Sept. 1, 2020) at 2, ECF No. 66-46 (); White Mountain Apache Tribe—Identification of Environmental Claims at 2-3, ECF No. 66-47.
In its claim specification, the Tribe claims that the Government breached its trust responsibilities by "failing to provide adequate financial and technical assistance to: (1) inventory dumps; (2) develop a plan to close dumps; (3) close dumps and (4) provide postclosure maintenance of such dumps." ECF No. 66-47 at 2. Plaintiff identified the dates of its claim as pertaining to: (1) open dumps of which the Tribe knew or should have known from March 16, 2011, to present; and (2) open dumps that the Tribe identified to the Government before March 16, 2011, where the Tribe relied on Government assurances that it would provide assistance that never materialized. Id. at 3. As the statutory basis for its claim, the Tribe cites the Act, "as informed by" the Resource Conservation and Recovery Act ("RCRA"); 42 U.S.C. §§ 6901-6992k (1976);the Snyder Act, 25U.S.C. § 13 (1998); and 25 U.S.C. § 162a(d)(8) (1994). Id.
On November 16, 2020, the Government filed its second Motion to Dismiss or for Summary Judgment on the Tribe's Phase I Claim arguing, among other things, that the Act does not meet the jurisdictional requirements of the Indian Tucker Act, 28 U.S.C. § 1505 (1992), since it does not impose specific fiduciary duties on the Government or mandate compensation for any breach of duties. See ECF No. 66-1. It also argues that the Tribe has failed to plead facts necessary to support its claim, and, in any event, the Government is entitled to summary judgment on the merits. See id. at 37-45; Def.'s Reply at 18-20, ECF No. 72. On January 22, 2021, the Tribe filed its Response to the Government's Motion. See Pl's Resp. to Mot for Dismissal, ECF No. 70. Following the...
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