UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
EL PASO NATURAL GAS COMPANY, ) ) Plaintiff, ) ) THE NA VAJO NATION ) ) Intervenor-Plaintiff, ) Civil Case No. 07-905 (RJL) ) v. ) ) UNITED STATES OF AMERICA, et at., ) ) DekndantL )
MEMORAN~PINION (March21, 2011) [#52]
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
1 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 EI Paso Natural Gas Company
("EPNG") on May 15,2007, EPNG Compi. [#1], with an amended complaint filed on
July 12,2007, EPNG Am. Compi. [#7]. EPNG alleges violations of the RCRA,
UMTRCA and APA. EPNG Am. Compi. ~~ 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. Compi. ~~ 88-102. EPNG
claimed jurisdiction in this Court under the APA. See id. The defendants moved to
dismiss the AP AlUMTRCA 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]. Afterthis
Court issued a Final Judgment as to the APAlUMTRCA 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-Compi. by the Navajo Nation, Mar. 5,2010 ("Tribe CompI.") [#41]. On
1 On January 28, 2011, the Court of Appeals for the DC Circuit affirmed this Court's March 31, 2009 decision. El Paso Natural Gas Co. v. United States, 2011 U.S. App. LEXIS 2842 (D.C. Cir. Jan. 28,2011). 2 March 30, 2010, the Tribe, which alleges, inter alia, the same violations - Fifth and Sixth
Claims of Relief - raised by EPNG' s AP AlUMTRCA claims, joined EPN G 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
CompI. ~ 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
CompI. ~~ 4, 28. During its years of operation, the Mill generated radioactive mill
tailings, a type of radioactive waste. See Tribe Compi. ~~ 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
2 The Tribe now requests, and this Court agrees, that its CWA claim be dismissed without prejudice. See Tribe's Opp'n at 15.
3 Mill. Tribe Compi. ~ 9. In February 2009, Congress appropriated $5 million towards the
cleanup of the Highway 160 Dump Site. Tribe Compi. ~ 12. The second site is the Tuba
City Open Dump ("TCOD"), located on both Hopi and Navajo Reservations. Tribe
Compi. ~ 13. TCOD was operated by the Bureau of Indian Affairs ("BIA") and ceased
accepting new waste in 1997. Tribe Compi. ~ 13. Since 1995, BIA and other authorities
have been investigating TCOD "at a cost of several millions of dollars." Tribe Compi. ~
14. To date, however, no remedial action has been taken to address contamination at the
site. Tribe CompI. ~ 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. §
790 1(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 oflndians and Hopi Tribe oflndians." 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
4 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 AP A 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
5 pursuant thereto." Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (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 (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 (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 (1980) (quoting United States v. King, 395 U.S. 1,4 (1969».
Finally, under Rule 12(b)(6), dismissal ofa complaint is appropriate if plaintiffs
factual allegations are insufficient to "raise a right to relief above the speculative level."
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although the complaint "is
construed liberally in the plaintiffs' favor, and [the court must] grant plaintiffs the benefit
of all inferences that can be derived from the facts alleged," the court need not accept as
6 true "legal conclusions cast in the form of factual allegations." Kowal v. MCI Commc'ns
Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
II. UMTRCA
The Tribe's third and fourth claims allege violations under UMTRCA and relevant
regulations. Tribe Compl. ~~ 89-98. In particular, in its Third Claim of Relief, the Tribe
alleges that applicable regulations promulgated by the Environmental Protection Agency
("EPA") require that DOE adopt a design to control radioactive materials at the Mill that
will be effective "for at least 200 years." Tribe Compl. ~ 91 (citing 40 C.F.R. §
192.02(a)). The Tribe alleges that because "[g]roundwater monitoring performed by or
on behalf of DOE in 2008 indicates no significant change in groundwater quality[;] ...
DOE has failed and is failing to comply" with the regulations. Tribe Compl. ~~ 92-93.
The Tribe's Fourth Claim of Relief alleges that under UMTRCA, DOE was required to
complete remedial action at the Mill by September 1998 and is required to perform
groundwater restoration activities without temporal limitation. Tribe Compl. ~~ 96-97
(citing 42 U.S.C. § 7912(a)(1)). Again, the Tribe alleges that DOE failed to comply with
these requirements. Neither claim, however, is properly before this court.
Federal courts are limited in their ability to review agency action. The basis for
such review must be found either in a specific statutory review provision or in the AP A.
Fund/or Animals, Inc. v. Us. ELM, 460 F.3d l3, 18 (D.C. Cir. 2006). Generally, in the
absence of a specific statutory provision precluding judicial review, the AP A provides a
generic cause of action to "[ a] person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action." 5 U.S.C. § 702. Indeed, when
7 reviewing such statutes, the Supreme Court itself has acknowledged a "strong
presumption that Congress intends judicial review of administrative action." Bowen v.
Mich. Acad. a/Family Physicians, 476 U.S. 667, 670 (1986).
Here, there is no specific provision in UMTRCA that either grants or precludes
judicial review. See 42 U.S.C. §§ 7901, et seq.3 As such, this Court must determine
whether the APA provides the necessary basis for judicial review. See Fund/or Animals,
Inc., 460 F.3d at 18. With respect to remedial action pursuant to UMTRCA, however,
Congress clearly intended to preclude adjudication under the APA. 4 Specifically,
3 Indeed, UMTRCA neither provides a cause of action, nor waives sovereign immunity. See generally 42 U.S.C. §§ 7901, et seq. 4 Defendant also challenges the Tribe's UMTRCA claims for failure to state a claim under Rule 12(b)(6). Because this court finds that it lacks jurisdiction to review the Tribe's UMTRCA claims, it need not reach this question here. Notwithstanding, it is clear from the pleadings that the Tribe's claims must fail for this reason as well. First, under the Tribe's Third Claim of Relief, the Tribe states that defendant has failed to comply with EPA regulations because monitoring confirms that there has been no significant change in groundwater quality. Tribe Compi. ~ 92. However, the EPA regulations are clear that remedial action must be designed to "[b]e effective ... for at least 200 years." 40 C.F.R. § 192.02(a). Monitoring after implementation is not required. § 192.02 n.1. Because the Tribe has failed to allege any facts to indicate that the remedial action was not designed to be sufficiently effective, its claim must fail. See § 192.02(a). Second, with respect to the Tribe's Fourth Claim of Relief, the Tribe alleges that: (1) defendant did not complete remedial action at the Mill prior to the statutory deadline; and (2) defendant did not take action to restore groundwater in a reasonable amount of time. See Tribe Compi. ~ 98. However, with respect to groundwater restoration, the AP A only permits courts to compel government action only "where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take." Norton v. S. Utah Wilderness Alliance ("SUWA "), 542 U.S. 55,64 (2004) (emphasis in original). Not only does UMTRCA not specify any discrete actions that the DOE must take in order to restore groundwater, but Congress specified that "the authority of [DOE] to perform groundwater restoration activities under [UMTRCA] is without [time] limitation." 42 U.S.C. § 7922(a). With respect to groundwater restoration, therefore, there is simply nothing for this Court to compel. With respect to remediation at the Mill, the Tribe alleges that defendant "failed to complete remedial action,"
8 UMTRCA authorizes the Secretary of Energy "to enter into a cooperative agreement ...
with any Indian tribe to perform remedial action at a designated processing site located
on land of such Indian tribe." 42 U.S.C. § 79l5(a). UMTRCA then lists terms and
conditions that the Secretary must include in the cooperative agreements. Among these
terms and conditions is the requirement that "[t]he Indian tribe ... execute a waiver (A)
releasing the United States of any liability or claim thereof by such tribe or person
concerning such remedial action and (B) holding the United States harmless against any
claim arising out of the performance of any such remedial action." § 7915( a)( 1).
Accordingly, when the DOE and the Tribe entered into the "Cooperative Agreement
between the United States Department of Energy, the Navajo Tribe of Indians and Hopi
Tribe of Indians" on January 17, 1985 (the "Agreement"), the Agreement released the
United States from all claims "arising out of the performance of any remedial action."
See Coop. Agmt. at 17-18.
The Tribe does not contest that it has waived certain claims under the Agreement.
Tribe Opp'n at 18. Instead, the Tribe argues that the violations alleged in the intervenor-
complaint do not amount to "performance" of remedial action and are, therefore, not
however, the facts alleged in the complaint indicate that defendant did in fact take remedial action at the Mill, see Tribe Compi. ,-r 98. As noted above, the court need not accept as true "legal conclusions cast in the form of factual allegations." Kowal, 16 F.3d at 1276. To the extent that the Tribe claims that defendant failed to complete remedial action because testing indicates that groundwater has not been restored and, therefore, it appears that the remedial action is ineffective, this claim must fail for the reasons explained above with respect to DOE's mandate to restore groundwater. There is simply no discrete action that this Court can compel. See SUWA, 542 U.S. at 64.
9 covered in the Agreement's waiver provision. Id. This argument, however, is contrary
to the plain text of the Agreement and must fail. How so?
The Cooperative Agreement defines remedial action as "the assessment, design,
construction, renovation, reclamation, decommissioning, and decontamination activities
of DOE .... " Coop. Agmt. at 4. The Tribe's third claim of relief alleges that defendant
violated EPA regulations because "the remedial action for the Mill is designed to fail
with respect to groundwater restoration." Tribe Opp'n at 17 (emphasis added).
Unfortunately for the Tribe, this challenge to the efficacy of the remedial design is
exactly the type of challenge to the performance of remedial action which is precluded
under the Agreement. Likewise, the Tribe's fourth claim of relief alleges that defendant
violated UMTRCA because "DOE failed to complete remedial action before September
30, 1998 and has failed to take appropriate action to restore groundwater at and near the
Mill and its vicinity properties." Tribe Opp'n at 17-18. Again, these complaints
regarding untimely performance and inappropriate performance, nonetheless, allege
violations relating to the "performance" of remedial action. See Coop. Agmt. at 18.
Importantly, the Tribe does not allege that the defendant has failed to take any
substantive remedial action related to the Mill. Instead, the Tribe alleges that the
remedial action taken, i.e. mill tailing covers, which were put in place pursuant to
UMTRCA, are ineffective. See Tribe Opp'n at 23. Moreover, the Tribe readily admits
that the very tests on which it relies, at least in part, to challenge the efficacy of DOE's
remedial design were conducted by DOE itself. See Tribe Opp'n at 23. Simply put, the
10 Tribe's challenge to the efficacy of defendant's efforts fall within the category of claims
Congress clearly intended to preclude. 5
IlL AIARMA and ILODCA
The Tribe's second claim alleges a violation of AIARMA. Tribe Compl. ~~ 84-
88. In AIARMA Congress found that "the United States has a trust responsibility to
protect, conserve, utilize, and manage Indian agricultural lands consistent with its
fiduciary obligation and its unique relationship with Indian tribes" 25 U.S.C. § 3701(2).
It, therefore, determined that the Secretary of the Interior "shall provide for the
management oflndian agricultural lands." § 3711(a). The Secretary is further required
to "conduct all land management activities on Indian agricultural land ... in accordance
with all tribal laws and ordinances, except in specific instances where such compliance
would be contrary to the trust responsibility of the United States." § 3712(a). The Tribe
alleges that because defendant has violated various Navajo laws, including the Navajo
Nation Clean Water Act, Navajo Nation Code Ann. tit. 4 §§ 1301 et seq. (2005), and the
Navajo Fundamental Law, Navajo Nation Code Ann. tit. 1 §§ 205(A) (2005), it is in
violation of AIARMA's provision requiring compliance with tribal law.
5 The Tribe's reliance on Leedom v. Kyne, 358 U.S. 184 (1958) as an alternative basis for jurisdiction is to no avail. Indeed, the Tribe fails to address why Leedom would apply in this case. Notwithstanding, this Court finds that Leedom's "extraordinary" exception does not apply here. See Nat 'I Air Traffic Controllers Ass 'n AFL-CIO v. Fed. Servo Impasses Panel, 437 F.3d 1256, 1263 (D.C. Cir. 2006). The preclusion of judicial review, here, is explicit, not implicit. See Nyunt V. Chairman, Broad. Bd. o/Governors, 589 F.3d 445,449 (D.C. Cir. 2009). Further, defendant does not "plainly act[] in excess of its delegated powers and contrary to a specific prohibition." See id. (internal quotation omitted). 11 The Tribe's ninth claim alleges violations ofILODCA. Tribe Compl. ,-r,-r 116-20.
As set forth in the statute, the purposes of ILODCA are to: "( 1) identify the location of
open dumps on Indian lands and Alaska Native lands; (2) assess the relative health and
environmental hazards posed by such dumps; and (3) provide financial and technical
assistance to Indian tribal governments and Alaska Native entities, either directly or by
contract, to close such dumps." 25 U.S.C. § 3901(b). To achieve this purpose, the
Director of the Indian Health Service ("IHS") is required, "[u]pon request by an Indian
tribal government," to inventory and evaluate the open dumps located on Indian lands. §
3904(a). In evaluating the severity of the threat to public health posed by the open
dumps, the Director must use pre-existing information unless, after consultation with the
Indian tribal government, it is determined that further testing must be conducted. §
3904(a)(1)(B). Following such assessment, the Director must then provide financial and
technical support to the Indian tribal government to close and maintain those dumps
based on "priorities developed by the Director." § 3904(b)-(c). Further, "[p]riorities on
specific Indian lands or Alaska Native lands shall be developed in consultation with the
Indian tribal government." § 3904(c). The Tribe thus claims that defendant has violated
ILODCA because it has "refused to consult with the Navajo Nation [or] otherwise
perform the above-listed duties." Tribe Compl. ,-r 120.
The Tribe argues that both AIARMA and ILODCA contain implied private rights
of action under which it may assert its claims. Tribe Opp 'n at 25. In the alternative, it
argues that it may bring its claims under the generic cause of action provided by the
APA. Tribe Opp'n at 31. Defendant, however, contends that neither statute creates a
12 private right of action. Def.'s Mot. to Partially Dismiss (Def.'s Mot.") at 29; Def.'s
Reply in Support of Def.' s Mot. ("Def.' s Reply") at 17-21. Further, defendant argues
that the Tribe's claims under the AP A must fail as the Tribe fails to identify any final
agency action by either the Department of the Interior or IHS. Def.'s Reply at 15-17. I
agree.
First, neither AIARMA nor ILODCA create a private right of action. A private
right of action must be created by Congress. Alexander v. Sandoval, 532 U.S. 275,286
(200 I). Moreover, "[t]he judicial task is to interpret the statute Congress has passed to
determine whether it displays an intent to create not just a private right but also a private
remedy." Id. If a statute does not explicitly grant a private right of action and private
remedy, the court must still determine if such a right is implied. Anderson v. u.s. Air, Inc., 818 F.2d 49,54 (D.C. Cir. 1987). In our Circuit, we look at four factors in making a
determination as to an implied right of action:
(1) whether the plaintiff is one of the class for whose benefit the statute was
enacted; (2) whether some indication exists of legislative intent, explicit or
implicit, either to create or to deny a private remedy; (3) whether implying a
private right of action is consistent with the underlying purposes of the legislative
scheme; and (4) whether the cause of action is one traditionally relegated to state
law, such that it would be inappropriate for the court to infer a cause of action
based solely on federal law.
Tax Analysts v. IRS, 214 F.3d 179, 185-186 (D.C. Cir. 2000). Indeed, "the most
important consideration is whether the legislature intended to create a private right of
13 action." Dial A Car v. Transp., Inc., 132 F.3d 743, 744 (D.C. Cir. 1998). The Supreme
Court has given some guidance. For instance, the court may look at the existence of
"rights-creating" language. Thus, if a statute focuses on the parties regulated or the
agencies regulating, and not on the parties protected, the statute would not implicate an
intent to confer rights. Sandoval, 532 U.S. at 289. Ultimately, the Supreme Court and
our Circuit have been hesitant to read an implied right of action in the absence of
Congress exercising its clear ability to explicitly create such rights. See Id.; Godwin v.
Sec'y ofHUD, 356 F.3d 310, 312 (D.C. Cir. 2004).
The Tribe argues that the statutes here manifest an implied private right of action.
I disagree. With respect to AIARMA, the statute expressly states that it does not waive
the sovereign immunity of the United States, manifesting a clear intent not to create a
cause of action. See 25 U.S.C. § 3712(d) ("This section does not constitute a waiver of
the sovereign immunity of the United States, nor does it authorize tribal justice systems
to review actions of the Secretary.,,).6 With regard to ILODCA, the text of the statute
does not suggest any intent by Congress to create a private right of action. Indeed,
ILODCA focuses on the regulating agency's obligations, and not on the rights of the
protected party, i.e., the Indian tribes. See Sandoval, 532 U.S. at 289. In addition, the
Supreme Court has itself held that a consultation requirement, such as the one found in
ILODCA, does not create a right of action. Lyng v. Nw. Indian Cemetery Prot. Ass 'n,
6 Contrary to the Tribe's contention, this provision in AIARMA, Section 3712(d), is not limited to suits brought in tribal courts. The waiver is two-fold, expressing that: (1) there is no waiver of sovereign immunity in any court; and (2) the tribal justice system has no authority to review the Secretary of the Interior's actions in any capacity. See § 3712(d). 14 485 U.S. 439, 455 (1988). Similarly, the statute's broad purpose and discretionary
mandate, across Indian and Alaskan Native lands, does not imply a clear private remedy.
As such, it is unclear, at best, that a private right is consistent with the purpose of the
statute. For these reasons, I find that ILODCA does not imply a private right of action.?
Second, the Tribe cannot bring its AIARMA or ILODCA claims under the APA.
The Tribe claims that defendant failed to comply with tribal law as required by AIARMA
and failed to consult with the tribal government and perform its duties under ILODCA.
Notwithstanding these contentions, the Tribe fails to allege a final agency action, as
required by the AP A, with regard to either statute. A final agency action is defined by
the APA as, inter alia, "a failure to act." 5 U.S.C. § 551(13). "Failures to act are
sometimes remediable under the APA, but not always." Norton v. S. Utah Wilderness
Alliance ("SUWA ''), 542 U.S. 55,64 (2004). A reviewable failure to act is limited "to a
discrete agency action." Id. (emphasis in original). Further, "the only agency action that
can be compelled under the APA is action legally required." Id. at 63 (emphasis in
original); see also Sierra Club v. Thomas, 828 F.2d 783, 793 (D.C. Cir. 1987) ("[Where]
an agency is under an unequivocal statutory duty to act, failure so to act constitutes, in
effect, an affirmative act that triggers 'final agency action' review.").
? The Tribe's focus on legislative history here is inapposite. As the Supreme Court has made clear, the analysis must begin, and may end, with the text and structure of the statute itself. See Sandoval, 532 U.S. at 288. Further, while both AIARMA and ILODCA may have been passed in favor of the Indian tribes, this alone is not dispositive. See Lyng, 485 U.S. at 455 (refusing to find a private right of action implicit in a statute passed for the benefit of Indian tribes). Simply, there is no indication based on a reading of the statute that Congress intended to create a right of action. 15 The requirement under AIARMA that the Secretary "conduct all land management
activities on Indian agricultural land ... in accordance with all tribal laws and
ordinances, except in specific instances where such compliance would be contrary to the
trust responsibility of the United States," 25 U.S.C. § 3712(a), does not implicate any
discrete agency action cognizable under the APA. See SUWA, 542 U.S. at 63. First, the
text of the statute does not contain any discrete, legally required actions that the agency is
required to take and that this Court could compel. See 25 U.S.C. § 3701. The
requirement that any actions performed be performed in accordance with tribal law does
not create a discrete mandate. Further, the Tribe only alleges that in not remediating the
contamination at the Mill and other properties, defendant is violating tribal law. See
Tribe Compl. ~ 88. This argument, however, displays a clear misreading of the statute.
The statute simply requires that when the agency acts, it act in compliance with tribal
law. It does not impose an affirmative duty to act for the purpose of preventing
violations of tribal law. See 25 U.S.C. §§ 3701, et seq. Finally, apart from stating that
defendant generally fails to comply with tribal laws, there is no allegation that it has
failed to do so while "conducting land management activities." See Tribe Compi. ~ 88.
The Tribe's claim with respect to AIARMA, therefore, must fail. Further any claims
against defendant for violations of tribal law, which rely on AIARMA, such as the
Navajo Nation Clean Water Act - Eighth Claim of Relief - must also fail for the same
reasons.
Likewise, the Tribe has not alleged a discrete agency action that defendant was
required to take in connection with TCOD. ILODCA's requirement that the Director of
16 IHS consult with tribal governments is predicated on a series of events occurring that all
fall within the discretion of the Director ofIHS. For instance, after a request is made by
an Indian tribal government, the Director must: (A) "conduct an inventory and evaluation
of the contents of open dumps ... ;" (B) "determine the relative severity ofthe threat to
public health and the environment ... ;" and (C) "develop cost estimates for closure and
postclosure maintenance of such dumps." 25 U.S.C. § 3904(a)(1). Only while
determining the relative severity must the Director consult with tribal government and
then only if the Director must determine if further testing is necessary to make such
determination. 25 U.S.C. § 3904(a)(1)(B). Consultation may also be required, after the
assessment above is completed, with respect to developing priorities in connection to
open dumps on specific Indian lands. 25 U.S.C. § 3904(c). The Tribe fails to allege any
facts relating to the pre-requisite requests, determinations and evaluations that would
precede consultation with Indian tribal governments. Indeed the Tribe itself states that
TCOD "has been studied and studied by federal agencies," indicating that far from
ignoring its obligations, defendant is taking some action with respect to the dump. See
Tribe Opp'n at 29. The pre-requisites to consultation, further, are broad, as they relate to
all open dumps on Indian tribal lands. It is up to IHS to conduct the inventory and
evaluations, prioritize across different Indian tribal lands, and develop cost estimates.
Such requirements are broad, and conclusory allegations that defendant has failed to
fulfill such requirements "'lack the specificity requisite for agency action. ", Montanans
for MUltiple Use v. Barbouletos, 568 F.3d 225,227 (D.C. Cir. 2009) (quoting SUWA, 542
U.S. at 66). While it is disappointing that IHS has failed to keep the Tribe apprised of its
17 apparent efforts with respect to TCOD and to act swiftly for the benefit of all Indian
tribes, the Tribe has not alleged a final agency action legally required that this Court
could compel. See SUWA, 542 U.S. at 63. As such, the Tribe's ILODCA claims under
the AP A must fail.
IV. United States' Trust Duties to the Navajo Nation
In the Tribe's Tenth Claim for Relief, the Tribe alleges that defendant has violated
its trust duties to the Navajo Nation, as established by the 1850 Treaty and federal
common law. Tribe Compl. ~ 126. The Tribe further argues that defendant "has waived
its immunity for such [breach of trust] suits in the APA. Tribe Opp'n at 34. As this
Court found in its earlier opinion, the AP A does not provide a basis for review where
such review is explicitly precluded by statute. EI Paso Natural Gas Co., 605 F. Supp. 2d
at 227-28 (citing 5 U.S.C. § 702(a)(1». Further, even where not precluded by statute, the
AP A requires that a plaintiff allege a final agency action in order to bring suit. 5 U.S.C. §
704. This standard applies equally to claims alleging breach of trust. See Cabell v.
Norton ("Cabell VF'), 240 F.3d 1081, 1094-95 (D.C. Cir. 2001). Thus, the Tribe must
allege facts that amount to a breach of duty cognizable under the APA. Unfortunately,
for the Tribe, it has, for the following reasons, failed to do so here.
Generally, our Circuit has stated that "[w]hile it is true that the United States acts
in a fiduciary capacity in its dealings with Indian tribal property, it is also true that the
government's fiduciary responsibilities necessarily depend on the substantive laws
creating those obligations." Shoshone-Bannock Tribes v. Reno, 56 F.3d 1476, 1482 (D.C.
Cir. 1995) (internal citations omitted). Thus, in order to bring a claim for breach of trust,
18 the Tribe "must identify a substantive source of law that establishes specific fiduciary or
other duties, and allege that the Government has failed faithfully to perform those
duties." United States v. Navajo Nation, 537 U.S. 488, 506 (2003). Indeed, establishing
a general trust relationship, though far from irrelevant, does not end the inquiry. Id.
"[T]he analysis must train on specific rights-creating or duty-imposing statutory or
regulatory prescriptions." Id. Common law trust principles may then "particularize [a
statutory] obligation." Cobell v. Norton ("Cobell XIIf'), 392 F.3d 461,472 (2004); see
also United States v. White Mountain Apache Tribe, 537 U.S. 465, 475 (2003); Mitchell
11,463 U.S. at 225-26. Finally, if a trust duty is established, the Court must determine
whether the APA's waiver of sovereign immunity allows for judicial review. See Cobell
VI, 240 F.3d at 1094-95.
Here, the Tribe alleges breach of trust arising out of defendant's violations of
various statutes including the RCRA, UMTRCA, CWA, ILODCA and AIARMA. The
Tribe bases its allegation on the premise that the sites at issue, the Mill, the Highway 160
Dump Site and TCOD, are located on Navajo Nation tribal lands and, therefore, held by
defendant in an express trust established by Congress. See Tribe CompI. , 124 (citing 25
U.S.C. § 640d-9(a)); Tribe Opp'n at 34 (citing same). The Tribe further points to
defendant's control of the Mill under UMTRCA and the reiteration of general trust duties
under ILODCA and AIARMA to support its claim that particular common law trust
duties (Le. to use reasonable care and skill to preserve and maintain the trust property)
are, therefore, enforceable. See Tribe Opp'n at 34-35 (citing White Mountain Apache
19 Tribe, 357 U.S. at 475). The Tribe, however, misinterprets Supreme Court and Circuit
precedent.
First, the Tribe's trust claims based on defendant's obligations arising out of
UMTRCA must fail. As stated above, in order to perform remedial action under
UMTRCA, DOE must enter into cooperative agreements with tribal governments, in
which the tribal governments agree to hold the United States harmless against any claims
relating to remedial activity. 42 U.S.C. § 7915(a)(1). Indeed, the Tribe has waived "any
liability or claim . .. arising out of the performance of any remedial action." See Coop.
Agmt. at 17-18 (emphasis added). The plain text of the Cooperative Agreement does not
limit this waiver to purely statutory claims. See id. Further, as this Court found in its
March 31, 2009 opinion, any claims based on UMTRCA' s designation and public
participation requirements are explicitly barred. El Paso Natural Gas Co., 605 F. Supp.
2d at 228-29. Because the APA does not provide a basis for review where such review is
explicitly precluded by statute, 5 U.S.C. § 701(a)(1), the Tribe's trust claims based on
defendant's performance of remedial action under UMTRCA must be dismissed.
Second, while the 1850 Treaty and other federal statutes clearly create a fiduciary
relationship between the Tribe and defendant, they do not create an independent cause of
action. See Cobell XIII, 392 F.3d at 471-72. This is equally true of the general trust
relationship reflected in AIARMA and ILODCA. Notably, neither AIARMA nor
ILODCA create any new trust duties or reiterate any particular trust obligations.
AIARMA, 25 U.S.C. § 3701 (finding that "the United States has a trust responsibility to
protect, conserve, utilize, and manage Indian agricultural lands consistent with its
20 fiduciary obligation and its unique relationship with Indian tribes"); ILODCA, 25 U.S.C.
§ 3901(a) (finding that "the United States holds most Indian lands in trust for the benefit
of Indian tribes and Indian individuals"). In fact, neither statute puts any Indian lands
under the control of the Government. See AIARMA, 25 U.S.C. 3711(b) ("Pursuant to a
self-determination contract or self-governance compact, an Indian tribe may develop or
implement an Indian agriculture resource plan. Subject to the provisions [relating to the
development of the resource plan], the tribe shall have broad discretion in designing and
carrying out the planning process."); ILODCA, 25 U.S.C. § 3904 (limiting the power of
the Director of the Indian Health Service to providing financial and technical assistance
to tribal governments). Accordingly, consistent with the Supreme Court's precedent,
neither statute implies a particular common law trust obligation. Compare Mitchell i,
445 U.S. at 542 (holding that the General Allotment Act, which with certain limitations
gave the Indian beneficiaries the right to posses and manage the lands, "created only a
limited trust relationship" and, therefore, "[did] not impose any duty upon the
government to manage timber resources"), and Navajo Nation, 537 U.S. at 507 (holding
that the Indian Mineral Leasing Act and relevant regulations, which do not contain
"elaborate" provisions nor assign a comprehensive managerial role to the Government,
do not imply any fiduciary obligations, even when the statutes impose one or more
specific obligations), with Mitchell II, 463 U.S. at 226 (holding that "the statutes and
regulations at issue in this caseL which give the Department of the Interior
comprehensive control over tribal timber,] clearly establish fiduciary obligations of the
Government in the management and operation of Indian lands and resources"), and White
21 Mountain Apache Tribe, 537 U.S. at 475 (holding that because the United States
exercised not only daily supervision, but occupation of the Apache Fort, which pursuant
to a 1960 statute was held in trust for the benefit of the Apache Tribe, the United States
owed the Apache Tribe the fundamental common law trust duty to preserve and maintain
trust assets).
Finally, the Tribe has failed to allege any independent cause of action based on a
statutorily prescribed trust duty. Cf Cobell VI, 240 F.3d at 1098-99. In the Cobellline of
cases, our Circuit upheld the district court's finding that the Government had a specific
fiduciary duty to manage Individual Indian Money ("11M") trust accounts and take
reasonable steps towards the discharge of that duty. Id. at 1098. As noted above,
however, defendant does not have more than a limited trust relationship with the Tribe in
relation to Navajo tribal lands. See 1850 Treaty, art. XI. Further, the Tribe has not
alleged any specific fiduciary duties arising out of the RCRA and CWA, neither of which
specifically deal with Indian tribal property. Indeed, while trust obligations towards
Indian tribes demand that courts resolve statutory ambiguities in favor of the tribes, see
Montana v. Blackfeet Tribe ofIndians , 471 U.S. 759, 766 (1985), or limit an agency's
discretion when dealing with such tribes, without specific statutory mandates, from which
to infer fiduciary duties, there is no independent cause of action. See Navajo Nation, 537
U.S. at 506.
22 CONCLUSION
Accordingly, for the foregoing reasons, the Court GRANTS defendant's Motion to
Dismiss [#52]. An order consistent with this decision accompanies this Memorandum
Opinion.