ORAL ARGUMENT HAS NOT BEEN SCHEDULED. No (consolidated with No ) UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

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1 USCA Case # Document # Filed: 01/18/2013 Page 1 of 76 ORAL ARGUMENT HAS NOT BEEN SCHEDULED No (consolidated with No ) UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT El Paso Natural Gas Company, and Navajo Nation, Appellants v. United States of America, et al., Appellees On Appeal from the United States District Court for the District of Columbia Hon. Richard J. Leon, District Judge FINAL BRIEF FOR APPELLANT NAVAJO NATION Paul E. Frye Harrison Tsosie, Attorney General FRYE LAW FIRM, P.C. David A. Taylor, Attorney Academy Rd. NE NAVAJO NATION DEPART- Suite 310 MENT OF JUSTICE Albuquerque, NM P.O. Box 2010 (505) Window Rock, AZ (928) January 18, 2013 Attorneys for Appellant Navajo Nation

2 USCA Case # Document # Filed: 01/18/2013 Page 2 of 76 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 1. Parties and Amici Plaintiff/Appellant in this appeal (No ) is the Navajo Nation, a federally recognized Indian tribe. Plaintiff/Appellant in the consolidated appeal (No ) is the El Paso Natural Gas Company. Defendant/Appellee in this appeal is the United States of America. Defendants/Appellees in the consolidated case are the United States of America; the United States Department of Energy and its Secretary, Steven Chu (substituted for Samuel W. Bodman, former Secretary of DOE); the United States Nuclear Regulatory Commission; the United States Environmental Protection Agency and its Administrator, Lisa Jackson (substituted for Stephen L. Johnson, former EPA Administrator); the United States Department of the Interior and its Secretary, Kenneth L. Salazar (substituted for Dirk Kempthorne, former Secretary of DOI); Bureau of Indian Affairs; United States Department of Health and Human Services and its Secretary, Kathleen Sebelius (substituted for Michael O. Leavitt, former Secretary of DHHS); the Indian Health Service; and the United States Department of Defense and its Secretary, Robert Gates. No amici curiae appeared below. 2. Rulings Under Review The Navajo Nation s appeal seeks review of the District Court s final judgment entered on March 21, 2012 dismissing the Navajo Nation s Complaint and its claims under the Resource Conservation and Recovery Act, 42 U.S.C et seq., and the order entered by the District Court on March 28, 2011 dismissing the Navajo Nation s claims under the Administrative Procedures Act, 5 U.S.C. 551 et seq.; the Uranium ii

3 USCA Case # Document # Filed: 01/18/2013 Page 3 of 76 Mill Tailing Radiation Control Act, 42 U.S.C et seq.; the American Indian Agriculture Resource Management Act, 25 U.S.C et seq.; the Indian Lands Open Dump Cleanup Act, 25 U.S.C et seq.; and the federal trust duty owed to the Navajo Nation under treaties and federal statutes and regulations. These rulings appear at pages 3-50 of the Joint Appendix ( JA ), and are reported as El Paso Natural Gas Co. v. United States, 847 F.Supp. 2d 111 (D.D.C. 2012), and El Paso Natural Gas Co. v. United States, 774 F.Supp. 2d 40 (D.D.C. 2011). 3. Related Cases Certain claims of the Navajo Nation in this case have previously been before this Court in the consolidated appeals of El Paso Natural Gas Co. v. United States, et al., No , and Navajo Nation v. United States, No This Court s decision in such prior appeals is reported as El Paso Natural Gas Co. v. United States, 632 F.3d 1272 (D.C. Cir. 2011). The appeal of other rulings of the District Court in this case, No , was consolidated with this appeal on this Court s own motion, by Order filed May 23, iii

4 USCA Case # Document # Filed: 01/18/2013 Page 4 of 76 TABLE OF CONTENTS Page Certificate as to Parties, Rulings, and Related Cases i i Table of Authorities...vii Glossary of Abbreviations...1 Jurisdictional Statement...2 Statement of the Issues...3 Statutes and Regulations....5 Statement of the Case...5 Nature of the Case; Course of Proceedings; Disposition Below Statement of Facts The Mill The Tuba City Open Dump The Highway 160 Dump Site Summary of Argument Argument I. Review Is De Novo II. UMTRCA Does Not Bar an APA Action to Enforce Independent EPA Standards at the Mill A. DOE s Violation of EPA Standards at the Mill is Actionable under the APA iv

5 USCA Case # Document # Filed: 01/18/2013 Page 5 of 76 B. The Fact that Congress Gave DOE Authority to Restore Groundwater for All Time Does not Mean that DOE Can Never Be Held to Account for Failing to Do So III. The Nation May Enforce ILODCA and AIARMA Under the APA or Pursue Private Rights of Action Under Those Statutes A. The Nation May Bring its ILODCA and AIARMA Claims Under the APA The APA Provides a Generic Cause of Action for Violations of Federal Statutes by Federal Officials The Nation Alleges Violations of Discrete Duties on a Site-Specific Basis; SUWA Is Inapposite The Nation Satisfies Any Final Agency Action Requirement B. ILODCA and AIARMA Create Private Rights of Action in Any Event Indian Lands Open Dump Cleanup Act i. ILODCA Imposes Mandatory Federal Duties to Benefit Tribes ii. ILODCA Creates a Private Right of Action for Tribes American Indian Agriculture Resource Management Act i. AIARMA Requires Federal Agencies to Comply with Tribal Laws ii. Congress Rejected the Administration s Objections to the Application of Tribal Laws to Federal Activities in Indian Country iii. AIARMA Satisfies the Four Cort v. Ash Factors v

6 USCA Case # Document # Filed: 01/18/2013 Page 6 of 76 C. The APA Waives Federal Sovereign Immunity for Actions under ILODCA and AIARMA, and No Final Agency Action is Required IV. Congress Express Trust Over the Lands at Issue, Federal Supervision and Occupation of Those Lands, and Specific Statutory Provisions Impose Trust Duties Enforceable Through Declaratory and Injunctive Relief A. The Mill and Open Dump Are Held in an Express Trust Established by Congress B. Enforceable Trust Duties Are Established by Federal Occupation and Use of Tribal Land Held in an Express Trust, by Federal Control or Supervision of Trust Property, or by Statutes and Regulations which, Fairly Construed, Impose Duties to Act for the Benefit of Indian Tribes C. The Nation Alleged Violations of Trust Duties Enforceable through Declaratory and Injunctive Relief V. The AOC Does Not Bar the Nation s RCRA Claims and Neither the 1985 Cooperative Agreement Nor the Doctrine of Mootness Bars the Claim for Cleanup of the Highway 160 Site A. The BIA/EPA Agreement to Perform Another Study is Too Little, Too Late B. The Nation s RCRA Claim Regarding the Highway 160 Dump Site Presents a Live Controversy not Precluded by the Agreement Amendment with DOE VI. Conclusion vi

7 USCA Case # Document # Filed: 01/18/2013 Page 7 of 76 I. CASES TABLE OF AUTHORITIES Air Courier Conf. of Am. v. American Postal Workers U., 498 U.S. 517 (1991) Akinseye v. District of Columbia, 339 F.3d 970 (D.C. Cir. 2003) Alexander v. Sandoval, 532 U.S. 275 (2001) Assiniboine and Sioux Tribes v. Board of Oil and Gas Conserv., 792 F.2d 782 (9th Cir. 1986)...28, 30 Babbitt v. Oglala Sioux Tribal Pub. Safety Dep t, 194 F.3d 1374 (Fed. Cir. 1999), cert. denied, 530 U.S (2000) Biodiversity Legal Found. v. Norton, 285 F.Supp. 2d 1 (D.D.C. 2003) , 33 *Blue Legs v. BIA, 867 F.2d 1094 (8th Cir. 1989) , 52 California v. Sierra Club, 451 U.S. 287 (1981) City of Roseville v. Norton, 348 F.3d 1020 (D.C. Cir. 2003), cert. denied, 541 U.S. 974 (2004) Cobell v. Babbitt, 30 F.Supp. 2d 24 (D.D.C. 1998) Cobell v. Kempthorne, 455 F.3d 301 (D.C. Cir.), cert. denied, 549 U.S (2006) * Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001)... 22, 25, 26, 30, 31, 33, 47, 48, 49, 52, 53, 54 Cobell v. Norton, 392 F.3d 461 (D.C. Cir. 2004) , 48, 50 Comcast Corp. v. FCC, 579 F.3d 1 (D.C. Cir. 2009) vii

8 USCA Case # Document # Filed: 01/18/2013 Page 8 of 76 *Cort v. Ash, 422 U.S. 66 (1975) County of Los Angeles v. Davis, 440 U.S. 625 (1979) El Paso Natural Gas Co. v. United States, 605 F.Supp. 2d 224 (D.D.C. 2009)....6 El Paso Natural Gas Co. v. United States, 632 F.3d 1272 (D.C. Cir. 2011)...6, 9 El Paso Natural Gas Co. v. United States, 774 F.Supp. 2d 40 (D.D.C. 2011).... 7, 17, 19, 24, 25, 26, 27, 29, 30, 49, 52 El Paso Natural Gas Co. v. United States, 847 F.Supp. 2d 111 (D.D.C. 2012)....7, 8, 56, 58 Environmental Defense Fund, Inc. v. Hardin, 428 F.2d 1093 (D.C. Cir. 1970)...30, 33 Essex Ins. Co. v. Doe, 511 F.3d 198 (D.C. Cir. 2008) * Frey v. EPA, 403 F.3d 828 (7th Cir. 2005) , 55, 57 Frey v. EPA, 2008 WL (S.D. Ind. Mar. 11, 2008) FTC v. Tariff, 584 F.3d 1088 (D.C. Cir. 2009) HRI, Inc. v. EPA, 198 F.3d 1224 (10th Cir. 2000) Idaho Conserv. League v. Mumma, 956 F.2d 1508 (9th Cir. 1992) In re American Rivers and Idaho Rivers United, 372 F.3d 413 (D.C. Cir. 2004) Island Mountain Protectors, 144 IBLA 168 (1998) viii

9 USCA Case # Document # Filed: 01/18/2013 Page 9 of 76 Jicarilla Apache Tribe v. Supron Energy Corp., 728 F.2d 1555 (10th Cir. 1984), adopted as majority op. as modified en banc, 782 F.2d 855, supplemented, 793 F.2d 1171, cert. denied, 479 U.S. 970 (1986) Kim v. United States, 632 F.3d 713 (D.C. Cir. 2011) Kowal v. MCI Comm. Corp., 16 F.3d 1271 (D.C. Cir. 1994) Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998) Lujan v. National Wildlife Fed., 497 U.S. 871 (1990) Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) * Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S.Ct (2012)...23, 26 Mitchell v. United States, 664 F.2d 265 (Ct. Cl. 1981), aff d, 463 U.S. 206 (1983) Montanans for Multiple Use v. Barbouletos, 568 F.3d 225 (D.C. Cir. 2009), cert. denied, 130 S. Ct (2010) Morton v. Mancari, 417 U.S. 535 (1974) NAACP v. Secretary of HUD, 817 F.2d 149 (1st Cir. 1987) Nahno-Lopez v. Houser, 627 F.Supp. 2d 1269 (W.D. Okla. 2009), aff d, 625 F.3d 1279 (10th Cir. 2010) NLRB v. Amax Coal Co., 453 U.S. 322 (1981) Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004) , 29 Oglala Sioux Tribe v. Andrus, 603 F.2d 707 (8th Cir. 1979) ix

10 USCA Case # Document # Filed: 01/18/2013 Page 10 of 76 Peoples v. Department of Ag., 427 F.2d 561 (D.C. Cir. 1970) * Pit River Tribe v. United States Forest Service, 469 F.3d 768 (9th Cir. 2006)...49, 52, 53 Price v. Socialist People s Libyan Arab Jamahiriya, 294 F.3d 82 (D.C. Cir. 2002)...8 * Navajo Chapter v. Salazar, 644 F.3d 1054 (10th Cir. 2011), aff d, 132 S.Ct (2012) Reliable Automatic Sprinkler Co., Inc. v. Consumer Prod. Safety Comm n, 324 F.3d 726 (D.C. Cir. 2003) San Juan Audobon Soc. v. Veneman, 153 F.Supp. 2d 1 (D.D.C. 2001) Sierra Club v. Department of the Interior, 398 F.Supp. 284 (N.D. Cal. 1975), modified on other grounds, 424 F.Supp. 172 (N.D. Cal. 1976) Sierra Club v. Glickman, 156 F.3d 606 (5th Cir. 1998) Sierra Club v. Peterson, 185 F.3d 349 (5th Cir. 1999) Sierra Club v. Thomas, 828 F.2d 783 (D.C. Cir. 1987) , 30 State of Wash., Dep t of Ecol. v. EPA, 1465 (9th Cir. 1985) Theodore Roosevelt Conserv. Partnership v. Salazar, 616 F.3d 497 (D.C. Cir. 2010) Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11 (1979) * Trudeau v. Federal Trade Comm n, 456 F.3d 178 (D.C. Cir. 2006)...27, 30, 46 United States v. Mitchell, 463 U.S. 206 (1983) , 37, 45, 48 x

11 USCA Case # Document # Filed: 01/18/2013 Page 11 of 76 United States v. United States Fid. & Guar. Co., 309 U.S. 506 (1940) United States v. Wheeler, 435 U.S. 313 (1978)...47 United States v. White Mountain Apache Tribe, 537 U.S. 465 (2003) , 50 United States Dep t of Treasury v. FLRA, 43 F.3d 682 (D.C. Cir. 1994) Varity Corp. v. Howe, 516 U.S. 489 (1996)...16, 48 II. TREATIES Treaty between the United States of America and the Navajo Tribe of Indians, 9 Stat. 974 (1850)....46, 47 III. STATUTES 5 U.S.C. 551 et seq....1, 4 5 U.S.C U.S.C. 706(1)...30, 31 *25 U.S.C. 640d , 50, U.S.C et seq....3, 26 *25 U.S.C , 42, 51 *25 U.S.C , 38, 51 *25 U.S.C , 32, 38, 39, 42, U.S.C U.S.C et seq....3, 26 xi

12 USCA Case # Document # Filed: 01/18/2013 Page 12 of 76 *25 U.S.C , 26, 32, 33, 36, 37, 51 *25 U.S.C , 34, U.S.C U.S.C , U.S.C U.S.C U.S.C , U.S.C U.S.C et seq....2, 4 42 U.S.C et seq....2, 4 42 U.S.C U.S.C U.S.C , 18, U.S.C , 50 *42 U.S.C , 18, 20, 22, 24, 50, 53 *42 U.S.C , 18, 24 *42 U.S.C U.S.C et seq....1, 4 42 U.S.C xii

13 USCA Case # Document # Filed: 01/18/2013 Page 13 of 76 4 N.N.C. 1321(A) N.N.C. 2203(O) IV. RULES AND REGULATIONS Fed. R. Civ. P. 12(b)(1)....7 Fed. R. Civ. P. 12(b)(6) C.F.R. 1.4 (2011) C.F.R (a) (2011)...39, 44 *40 C.F.R (2011)...9, 18, C.F.R (2011)...12 V. OTHER AUTHORITIES Act of June 14, 1934, ch. 521, 48 Stat Charles Kappler, Indian Affairs, Laws and Treaties (1904)...47 Cohen s Handbook of Federal Indian Law (2005) , 53 Executive Order of May 17, 1884 (May 17, 1884) Fed. Reg. 58,882 (Oct. 7, 2005)...39, Cong. Rec. 18,029 (Jul. 2, 1992) Cong. Rec. 34,628 (Oct. 8, 1992) , Cong. Rec (Apr. 1, 1993) Cong. Rec. 29,235 (Nov. 16, 1993) xiii

14 USCA Case # Document # Filed: 01/18/2013 Page 14 of 76 H.R. Rep. No (Part I) (Aug. 11, 1978) H.R. Rep. No (Part II) (Sept. 30, 1978) , 35, 51 H.R. Rep. No (1993)...40, 43, 51 H.R. Rep. No (1994)...35, 36, 51, 52 S. Rep. No (1992)...39, 41 S. Rep. No (1993)...40, 41, 43, 51 S. Rep. No (1994) Uranium Mill Tailings Control Act of 1978, Hearings before the House Subcomm. on Energy and Power of the Comm. on Interstate and Foreign Commerce, 95th Cong., 2d Sess., Serial No * Authorities upon which we chiefly rely are marked with asterisks. xiv

15 USCA Case # Document # Filed: 01/18/2013 Page 15 of 76 GLOSSARY OF ABBREVIATIONS AEC means the United States Atomic Energy Commission, now the Nuclear Regulatory Commission. AIARMA means the American Indian Agriculture Resource Management Act, 25 U.S.C et seq. AOC means the September 2010 Administrative Order on Consent between the federal Environmental Protection Agency and the Bureau of Indian Affairs regarding the Tuba City Open Dump. APA means the Administrative Procedures Act, 5 U.S.C. 551 et seq. BIA means the Bureau of Indian Affairs, an agency of the United States Department of the Interior. CERCLA means the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C et seq. DHHS means the United States Department of Health and Human Services. DOD means the United States Department of Defense. DOE means the United States Department of Energy. DOI means the United States Department of the Interior. EPA means the United States Environmental Protection Agency. EPNG means the Plaintiff-Appellant El Paso Natural Gas Company. IHS means the Indian Health Service, an agency of the DHHS.

16 USCA Case # Document # Filed: 01/18/2013 Page 16 of 76 ILODCA means the Indian Lands Open Dump Cleanup Act, 25 U.S.C et seq. NOI means notice of intent to sue under RCRA. NOV means a notice of violation, including EPA s 2000 Notice of Potential Landfill Closure Violation, issued under RCRA related to the Open Dump. RCRA means the Resource Conservation and Recovery Act, 42 U.S.C et seq. RI/FS means the Remedial Investigation/Feasibility Study contemplated under the AOC. UMTRCA means the Uranium Mill Tailings Radiation Control Act, 42 U.S.C et seq Cooperative Agreement means the 1985 cooperative agreement, No. DE-FC04-85AL26731, between DOE, the Navajo Nation, and the Hopi Tribe. JURISDICTIONAL STATEMENT The Navajo Nation ( Nation or Tribe ) sued the United States, alleging violations of various federal environmental laws, the federal trust duty, and the Administrative Procedures Act, and invoking the District Court s subject matter jurisdiction under 28 U.S.C. 1331, 1361, 1362, and The District Court dismissed the Nation s claims and entered final judgment on March 21, 2012, 2

17 USCA Case # Document # Filed: 01/18/2013 Page 17 of 76 disposing of all parties claims. The Nation timely filed its Notice of Appeal on May 17, This Court has jurisdiction over this appeal under 28 U.S.C STATEMENT OF THE ISSUES Agencies of the United States have contaminated Navajo Nation agricultural lands with medical wastes, municipal wastes, radioactive wastes and other solid and hazardous wastes at an open dump established and run by the BIA (the Tuba City Open Dump or Open Dump ) and on nearby lands used by federal agencies for dumping or storing such wastes (the Highway 160 Dump Site and the Tuba City uranium mill, or Mill ). The BIA and other federal agencies have studied and restudied the Open Dump for approximately 17 years under RCRA, acknowledging its violation of RCRA but taking no steps to clean up any of the contamination during that time. That contamination has harmed and continues to threaten human health and the environment, and is contaminating the principal water supply serving Navajo and Hopi Indians in the region. The Nation s suit to compel the United States to clean up the pollution it caused at the Open Dump and the Highway 160 Dump Site was dismissed by the District Court, which ruled that neither the Indian Lands Open Dump Cleanup Act (ILODCA), 25 U.S.C et seq., nor the American Indian Agriculture Resource Management Act (AIARMA), 25 U.S.C et seq, confers a private right of action by tribes against the Government, that the Nation waived 3

18 USCA Case # Document # Filed: 01/18/2013 Page 18 of 76 certain of its claims in a 1985 cooperative agreement with the DOE, that the United States has no enforceable trust duties regarding these sites, and that a BIA post-suit agreement with the EPA under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C et seq., retroactively precluded the Nation s claim under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C et seq. The issues presented in this appeal are: 1. Whether the Nation has a right of action under ILODCA and AIARMA. 2. Whether federal violations of ILODCA, AIARMA, and the Uranium Mill Tailings Radiation Control Act (UMTRCA), 42 U.S.C et seq., are properly raised under the Administrative Procedures Act (APA), 5 U.S.C. 551 et seq. 3. Whether the 1850 Treaty between the United States and the Navajo Nation, an express trust established by Congress over the Navajo lands at issue, specific duties set forth in statutes and regulations expressly intended to further the trust relationship, and federal control and occupation of these lands impose trust duties enforceable through declaratory and injunctive relief. 4. Whether the District Court erred in dismissing the Nation s RCRA claim as a prohibited challenge to a removal action under CERCLA, where the CERCLA action simply calls for the thirty-third study of the Open Dump and provides no commitment to any clean up action or plan. 4

19 USCA Case # Document # Filed: 01/18/2013 Page 19 of 76 STATUTES AND REGULATIONS Pertinent treaties, statutes, and regulations are set forth in the accompanying Addendum. STATEMENT OF THE CASE Since the 1950s, federal agencies have dumped solid, hazardous and radioactive wastes on Navajo tribal lands, causing soils contamination and polluting the Navajo Aquifer, on which Navajos and Hopis depend for drinking water. The Bureau of Indian Affairs and other agencies have studied and restudied this mess for about 20 years, studying one particularly toxic federal dump, the Tuba City Open Dump, at least 32 times. The Government acknowledges the contamination and BIA s continuing violation of RCRA, but have remediated nothing there. Congress passed remedial legislation to address these specific problems. However, the District Court dismissed the Nation s Complaint on the grounds that these statutes permit no private right of action and that the Government owes no trust duties to the Nation to protect land held under an express trust and under the exclusive control and occupation of the United States, allowing the United States to defer indefinitely any substantive action to clean up its wastes. The Nation respectfully submits that the court below misread these Indian-focused and other federal environmental laws, overlooked the role of the APA, and misconstrued or 5

20 USCA Case # Document # Filed: 01/18/2013 Page 20 of 76 overlooked this Court s precedents. Reversal is necessary to effectuate environmental laws and the trust relationship, and to protect Navajo people from the health hazards they have faced for decades too long. NATURE OF THE CASE; COURSE OF PROCEEDINGS; DISPOSITION BELOW EPNG sued the United States and various federal agencies and officials in 2007 alleging violations of UMTRCA, RCRA and the APA in its contamination and administration of the Mill, the Open Dump, the Highway 160 Dump Site, and related vicinity properties as defined in UMTRCA. All of these properties are wholly or partly on lands held in trust by the United States for the Nation. The federal defendants filed an answer and counterclaim, invoking District Court jurisdiction under RCRA and 28 U.S.C The District Court granted the United States motion to dismiss EPNG s claims under UMTRCA and the APA for lack of subject matter jurisdiction in 2009, El Paso Natural Gas Co. v. United States, 605 F.Supp. 2d 224 (D.D.C. 2009) ( EPNG I ), and certified that ruling for interlocutory appeal in 2010, Dkt. 40. EPNG appealed the UMTRCA/APA ruling and the Nation joined in EPNG s appeal, having intervened as plaintiff in See Dkt. 40, 41. This Court affirmed. El Paso Natural Gas Co. v. United States, 632 F.3d 1272 (D.C. Cir. 2011) ( EPNG II ). In March 2011, the District Court dismissed all of the other claims asserted by 6

21 USCA Case # Document # Filed: 01/18/2013 Page 21 of 76 the Nation, except for the RCRA claims. El Paso Natural Gas Co. v. United States, 774 F.Supp. 2d 40 (D.D.C. 2011) ( EPNG III ), JA3-26. It held that neither AIARMA nor ILODCA created a private right of action, that AIARMA violations were not discrete agency actions cognizable under the APA, that neither DOE s activities under UMTRCA nor IHS s failure to consult with the Nation were subject to judicial review, and that the Government violated no enforceable trust duties in contaminating, regulating and occupying the Navajo trust lands. Id. Finally, by Memorandum Opinion and Order entered March 21, 2012, the District Court dismissed the Nation s (and EPNG s) RCRA claims for lack of subject matter jurisdiction based on the CERCLA 113(h) bar. El Paso Natural Gas Co. v. United States, 847 F.Supp. 2d 111 (D.D.C. 2012) ( EPNG IV ), JA These consolidated appeals followed. STATEMENT OF FACTS The District Court dismissed with prejudice the Nation s UMTRCA claims for lack of subject matter jurisdiction or, alternatively, for failure to state a claim. EPNG III, JA 7-13 & n.4, It dismissed the Nation s AIARMA and ILODCA claims for lack of subject matter jurisdiction, and it held that the Nation failed to identify an enforceable trust duty. Id. at 7. Because the dismissals were predicated on Fed. R. Civ. P. 12(b)(1) and 12(b)(6), the factual allegations of the Nation s Complaint must 7

22 USCA Case # Document # Filed: 01/18/2013 Page 22 of 76 1 be accepted as true, and the following recitation of the facts is based largely on those allegations and on the District Court s own recitation of the facts. See generally EPNG IV, JA The Mill EPNG and its predecessor, the Rare Metals Corporation, processed about 800,000 tons of uranium ore at the Mill between 1956 and JA , , ( 2, 4, 30-31). All operations were closely supervised and regulated by the AEC and DOI. The AEC set price schedules for the uranium processed at the Mill and the United States agreed to take ownership of and be solely responsible for the tailings generated or disposed of at the Mill and other nearby properties. JA ( 28-36). The Mill s sole function was to produce materials for the Government s nuclear weapons program. JA150 ( 31). The materials left over from the milling process are called tailings. They include radioactive materials, heavy metals and other substances harmful to health and the environment. See 42 U.S.C. 7911(8). The tailings at the Mill were piled on a thin geologic layer that allows rain water to flow directly through the tailings pile and into the Navajo Aquifer, a primary source of drinking water for area residents. Thus, the Mill site is a uniquely inappropriate 1 Price v. Socialist People s Libyan Arab Jamahiriya, 294 F.3d 82, 93 (D.C. Cir. 2002) (Rule 12(b)(1)); Kowal v. MCI Comm. Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994) (Rule 12(b)(6)). 8

23 USCA Case # Document # Filed: 01/18/2013 Page 23 of 76 location to store uranium mill tailings. JA ( 7). UMTRCA was enacted in 1978 to stabilize and control uranium mill tailings in a safe and environmentally sound manner and to minimize or eliminate radiation health hazards. 42 U.S.C. 7901(b)(2). The Mill is one of the original 22 sites designated under UMTRCA. JA156 ( 55); 42 U.S.C. 7912(a)(1). In 1985, under 42 U.S.C. 7915, DOE and the Nation executed a Cooperative Agreement concerning remediation of the Mill, which waives Navajo claims arising out of the performance of any remedial action at the Mill or any vicinity property and requires that any remedial action be selected and performed in accordance with section 7918 of UMTRCA. See EPNG II, 632 F.3d at 1278; 42 U.S.C. 7915(a)(1), (2); JA In turn, section 7918 requires that any remedy at the Mill meet certain design criteria and environmental standards set by the EPA, including that the design [b]e effective for up to one thousand years, to the extent reasonably achievable, and, in any case, for at least 200 years. 42 U.S.C. 7918; 40 C.F.R (a). UMTRCA further requires that remedial action be completed at the Mill before September 30, 1998, without limiting DOE s authority to perform groundwater restoration. 42 U.S.C. 7912(a)(1), 7922(a)(1)(A). Here, however, the design is already failing, groundwater at and near the Mill is still degraded and not improving. DOE has violated the applicable design criteria and is violating applicable 9

24 USCA Case # Document # Filed: 01/18/2013 Page 24 of 76 environmental standards at the Mill. And DOE failed to complete the remediation of the Mill by 1998, and it is still not remediated. JA ( 92, 93, 98). The Tuba City Open Dump The Open Dump comprises 30 acres of land, two acres of which are located on land held in trust for the Navajo Nation by the United States within the Navajo Reservation and the rest on Hopi tribal lands. JA144 ( 13). It is a federal facility owned and operated by BIA from the late 1950s until 1997, when BIA stopped using it. Id.; JA DHHS and IHS used the Open Dump for dumping medical wastes, municipal wastes, solid wastes, and other hazardous wastes. JA148, 161 ( 26, 68). From 1968 to the present, the United States has dumped and continues to store residual radioactive materials, waste and debris from the Mill at the Open Dump. JA ( 58, 59, 61, 65, 66, 67). The Mill wastes have been stored or disposed of in containers or directly on the ground at the Open Dump, and have leaked and spilled uranium, arsenic, vanadium, sulfates, chlorides, radon, molybdenum, selenium, nitrates, gross alpha particles, and other substances into the soil and groundwater of the Navajo Aquifer. JA144, 160 ( 15, 66, 67). The Mill wastes and medical wastes lie exposed on the surface of the Open Dump and present an imminent and substantial endangerment to health and the environment, and the level of contamination of the aquifer at the Open Dump exceeds federally established 10

25 USCA Case # Document # Filed: 01/18/2013 Page 25 of 76 maximum contaminant levels. JA144, , 159, ( 15, 58, 64, 71-73). The BIA has never obtained the required permit or interim status under RCRA to own or operate the Open Dump. JA ( 65). In 1992, BIA committed to close the Open Dump under RCRA. JA275. For the past 20 years, BIA has reneged on this commitment. Thus, since 1992, BIA has been served with five Notices of Intent to Sue under RCRA. In 1993 and 1997, a Navajo citizens group, motivated in part by daily fires at the Open Dump, served Notices of Intent to Sue ( NOIs ) alleging violations of RCRA s Part 258 regulations, and BIA re-committed to closing the Open Dump. BIA violated that commitment for lack of money. JA275. In response to the 1997 NOI, DOI s Assistant Secretary for Indian Affairs responded by providing the Navajo Area $500,000 and assuring the citizens in writing that the landfill would be closed within 90 days of the opening of the Tuba City Solid Waste Transfer Station, which opened in July JA275 (emphasis added). At a public meeting in Tuba City in June 1997, the BIA agreed, inter alia, to prepare a Closure Plan, to consolidate waste into active cells, and to complete actual cover and capping... in FY if funding is available. JA276. The BIA did not cover and cap the Open Dump, and, shortly after its announced deadline for doing so, a BIA-funded investigation revealed that the Dump poses a considerable risk to groundwater.... Waste disposal cells extend below the water table, and waste is saturated with leachate in the 11

26 USCA Case # Document # Filed: 01/18/2013 Page 26 of 76 upper portion of the N[avajo] aquifer. Groundwater contaminants detected above EPA maximum contaminant levels (MCLs) include total dissolved solids, sulfate, chloride, nitrate, selenium, radium-226, and total coliforms. Uranium was detected above the proposed MCL, and vanadium was detected above the EPA health advisory. JA282. The consultant reported that, because the Open Dump was contaminating groundwater, it did not qualify for closure as a small exempt landfill (as BIA had hoped), and that it was currently out of compliance with [RCRA regulations at] 40 C.F.R , and final closure must be completed as rapidly as possible. JA287. BIA did nothing. In February 2000, EPA finally acted and issued a Notice of Potential Landfill Closure Violation ( NOV ) under RCRA. JA291. In April 2000, BIA acknowledged the potential groundwater contamination and stated to EPA that a study of possible pathways to drinking water wells needed to be evaluated. JA294. BIA told EPA that in about a year, we believe sufficient documentation will exist to select a closure option, that if an in-place closure option were selected funding would occur in FY2001 and FY2002, and if clean closure were selected (as urged by the Navajo and Hopi tribes), funding would occur in those years and in FY JA295. EPA ultimately did not pursue the NOV and has never taken any further enforcement action under RCRA to enforce its RCRA regulations at the Open Dump. Rather, BIA performed over a dozen studies at the Open Dump in the next 12

27 USCA Case # Document # Filed: 01/18/2013 Page 27 of 76 seven years, but still took no action to close the Open Dump. As a result, beginning in 2007, the Nation, EPNG, and the Hopi Tribe each served NOIs alleging RCRA violations by BIA and endangerment at the Open Dump. E.g., JA165 ( 83); 117 ( 112); 298, , 320. Since then, the BIA and other federal agencies have performed nearly a dozen additional studies of the Open Dump. Nonetheless, BIA still has not closed the Open Dump and continues to violate RCRA, as its own contractor reported again in JA409. It has still not completed closure, groundwater monitoring, or corrective action there as required by the part 258 RCRA regulations. Approximately 20 years after BIA first committed to close the Open Dump, 20 years of conceded RCRA violations, four years after EPNG filed its RCRA claim, two years after the Nation filed its RCRA claim, and over a year after the United States itself invoked RCRA jurisdiction in its counterclaim against EPNG below, the BIA and EPA entered into an Administrative Order on Consent ( AOC ) for the Open Dump only. This post-suit maneuvering was the basis for the United States to claim that the Nation s RCRA claim which included both the Open Dump and the Highway 160 Dump Site was barred by CERCLA section 113(h), 42 U.S.C. 9613(h), as a challenge to a CERCLA removal action. Having conducted 32 studies of the Open Dump, see JA394-98, and having 13

28 USCA Case # Document # Filed: 01/18/2013 Page 28 of 76 failed to close the Open Dump as promised because expected funding did not materialize on at least two occasions, the BIA and EPA agreed on terms of the AOC that call for yet more study (the Remedial Investigation/Feasibility Study or RI/FS ) and some possible unspecified remedial action, all of which are conditioned on uncertain federal funding, JA370, 373, 375 ( 71, 77(a)(xiii), 79(b)(ii)). BIA is only required to seek appropriations, as it has done unsuccessfully for the past two decades and, if funding is obtained, the AOC commits the BIA to complete the RI/FS, the thirty-third study of the Open Dump. The AOC contains no real commitment to take any action at the Open Dump, other than the general duty of the BIA to go back to Congress year after year to seek funding. JA375 ( 79(b)(ii)). Notably, the remedial alternatives considered by BIA have not substantially changed since The BIA has already considered several times the remedies of disposal on site, disposal off site, and capping and covering under RCRA. See JA276, , 295, 415. The list of possible remedies in Table 3 of the RI/FS Work Plan identifies these same remedies. See, e.g., JA289. The Highway 160 Dump Site The Highway 160 Dump Site, located across the highway from the Mill, is contaminated with radioactive debris from the Mill. JA143 ( 9). The Navajo Nation discovered the environmental dangers associated with this site, performed the initial 14

29 USCA Case # Document # Filed: 01/18/2013 Page 29 of 76 radionuclide survey for the site, and attempted to persuade federal agencies to take remedial action there, to no avail. JA143 ( 10). As a result of the Nation s actions, Congress appropriated $5 million for cleanup of the Highway 160 Dump Site in JA ( 11-12). The Navajo Nation has completed soil characterization and has transported waste from the surface of the site for disposal at a remote location. See JA436. However, it is unknown whether the appropriation and the Nation s efforts will suffice for any needed groundwater remediation. JA SUMMARY OF ARGUMENT The court below held that judicial review of violations of UMTRCA is precluded by the 1985 Cooperative Agreement and UMTRCA itself. That holding misreads both. The court s alternative holding that the Nation s claims must be dismissed for failure to state a claim is based on an incorrect reading of the Complaint and the non-sequitur that, simply because DOE s authority to perform groundwater restoration is without time limitation, DOE cannot be compelled to restore groundwater at any time under the APA. Federal action or inaction is nearly always reviewable for conformity with statutory obligations under the APA, such as those under ILODCA and AIARMA, without any need to infer a private right of action from those statutes. In any event, both statutes confer a right of action against the United States in favor of aggrieved 15

30 USCA Case # Document # Filed: 01/18/2013 Page 30 of 76 Indian tribes. Congress intent to create a private right of action is shown by the plain language of both laws and their legislative history. Both laws were passed for the special benefit of Indian tribes and a right of action is consistent with their purposes. No state interests are implicated. The District Court erroneously restricted the Government s trust duties to those expressly required by statutes and regulations. In so holding, the court below overlooked the express trust created by Congress over the lands at issue and the plain language of the applicable statutes themselves. Not even monetary claims against the United States under the so-called Indian Tucker Act are so restricted, and claims for relief under the APA for federal actions in violation of federal common law such as federal trust obligations are certainly not. If the fiduciary duty applied to nothing more than activities already controlled by other specific legal duties, it would serve no purpose. Varity Corp. v. Howe, 516 U.S. 489, 504 (1996). The Government s post-suit invocation of CERCLA to conduct the thirty-third study of the Open Dump if funds can be obtained from Congress does not bar the Nation s RCRA claims. After almost two decades of studying, a decision even if nominally under CERCLA to continue to study the Open Dump contamination for an indeterminate period of time without any commitment to an action or plan to clean up the site does not bar the Nation s RCRA citizen suit. See Frey v. EPA, 403 F.3d 16

31 USCA Case # Document # Filed: 01/18/2013 Page 31 of , (7th Cir. 2005) ( There is no support in [CERCLA] for such an openended prohibition on a citizen suit. ). ARGUMENT I. REVIEW IS DE NOVO. The court below dismissed the Nation s claims under UMTRCA for lack of subject matter jurisdiction or, alternatively, for failure to state a claim. EPNG III, JA 7-13 & n.4. The court dismissed the Nation s ILODCA and AIARMA claims for lack of subject matter jurisdiction on the basis that neither statute created a private right of action and that there was no discrete agency action challenged under AIARMA or ILODCA as required under the APA. JA It dismissed the Nation s breach of trust claim for failure to state a claim. JA Finally, the court dismissed the Nation s RCRA claims for lack of subject matter jurisdiction and, for the Highway 160 Dump Site, for mootness, which also implicates subject matter jurisdiction. See Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003). Review of the District Court s decisions is accordingly de novo. See Kim v. United States, 632 F.3d 713, 715 (D.C. Cir. 2011). 2 2 The District court s interpretation of the 1985 Cooperative Agreement and Amendment no. 26 thereto, upon which its UMTRCA and Highway 160 mootness decisions rest in part, was based on no extrinsic facts, and is also reviewed de novo. See Essex Ins. Co. v. Doe, 511 F.3d 198, 200 (D.C. Cir. 2008). 17

32 USCA Case # Document # Filed: 01/18/2013 Page 32 of 76 II. UMTRCA DOES NOT BAR AN APA ACTION TO ENFORCE INDEPENDENT EPA STANDARDS AT THE MILL. The District Court held that 42 U.S.C. 7915(a)(1) and the 1985 Cooperative Agreement implementing that subsection bar the Nation s APA claim asserting a violation of mandatory EPA regulations at the Mill. In doing so, the court misconstrued both UMTRCA and the Cooperative Agreement and gave short shrift to the APA. A. DOE s Violation of EPA Standards at the Mill Is Actionable under the APA. UMTRCA provides that any DOE remedial action shall be selected and performed in accordance with section 7918 of this title. 42 U.S.C. 7915(a)(2) (emphasis added). In turn, 7918 provides that DOE shall select and perform remedial actions... in accordance with the general standards prescribed by the [EPA] Administrator. 42 U.S.C. 7918(a)(1) (emphasis added). Among other requirements, EPA regulations require that control of radioactive materials and their constituents be designed to [b]e effective for up to one thousand years, to the extent reasonably achievable, and, in any case, for at least 200 years. 40 C.F.R (a). In addition, DOE was required to complete remedial action at the Mill by September 30, See 42 U.S.C. 7912(a)(1) ( the Secretary shall complete remedial action at the above listed sites [which includes the Mill] before his authority 18

33 USCA Case # Document # Filed: 01/18/2013 Page 33 of 76 terminates under this subchapter ) (emphasis added); 7922(a)(1) (Secretary s authority to perform remedial action shall terminate on September 30, 1998 except for groundwater restoration). These are all mandatory requirements. See FTC v. Tarriff, 584 F.3d 1088, 1090 (D.C. Cir. 2009) ( shall means must or will ). Contrary to the statutory command and to DOE s public pronouncements, see JA317 (stating that clean up was completed in 1990), remedial action at the Mill is still not completed, and the Mill s design is already failing, because it is not encapsulated but rather sits on a thin geologic layer that allows rain water to flow directly through the tailings pile into the Navajo sandstone, which is the location of the Navajo Aquifer, a primary source of drinking water for area residents, making the Mill a uniquely inappropriate location to permanently store uranium mill 3 tailings, JA ( 7). The Government s storage of wastes at the Mill presents an imminent and substantial endangerment to health or the environment. JA161 ( 70). The design chosen by DOE has done nothing to correct the groundwater contamination. JA166 ( 92). The Nation sought relief for these violations of EPA regulations under the APA. No specific provision in UMTRCA precludes judicial review. EPNG III, 3 The District Court overlooked these allegations in erroneously predicating dismissal of the Tribe s UMTRCA claims on the statement that the Tribe has failed to allege any facts to indicate that the remedial action was not designed to be sufficiently effective. EPNG III, JA10 n.4 (emphasis in original). 19

34 USCA Case # Document # Filed: 01/18/2013 Page 34 of 76 JA10. But the court held that UMTRCA implicitly trumped the APA by its requirement that tribes on whose land DOE would perform remedial actions (A)... releas[e] the United States of any liability or claim thereof... concerning such remedial action and (B) hold[ ] the United States harmless against any claim arising out of the performance of any such remedial action. Id. at (quoting 42 U.S.C. 7915(a)(1)). The 1985 Cooperative Agreement mirrors that language. JA11. This holding reads these complementary provisions of UMTRCA and the Cooperative Agreement too broadly. The Nation waived only claims arising out of the performance of remedial action, not claims arising after the purported completion of it. This is not only the natural and logical reading of UMTRCA, but it is confirmed by UMTRCA s legislative history. The bill that, as amended, became UMTRCA, was H.R The version of the bill reported out initially by the Committee on Interior and Insular Affairs did not contain any tribal waiver requirement. See H.R. Rep. No (Part I) (Aug. 11, 1978) 5, 19. The bill had also been referred to the Committee on Interstate and Foreign Commerce. That Committee reported out the bill with the tribal waiver requirement in section 105(a)(1), see H.R. Rep. No (Part II) (Sept. 30, 1978) (the Report ) 9, with language identical to that now found in 42 U.S.C. 7915(a)(1). The Committee stated that the tribal waiver and release provision was nearly identical to the provisions of section 103, Report at 20

35 USCA Case # Document # Filed: 01/18/2013 Page 35 of 76 39, which required waivers and releases in State cooperative agreements, see id. at 6 (at section 103(c)(2)). The Committee explained that such waiver would be fully binding on the Indian tribe but cautioned that [t]he Committee does not intend by this act to affect the responsibilities of the Secretary of the Interior as trustee for any Indian tribe. Report at 39. DOE had sought a broader release in an administration bill, introduced as H.R , see id. at 24, that provided for a release of liability dating from enactment of the legislation through the completion of the remedial action, id. at 48 (emphasis 4 added). DOE s discussion of and agreement to the more limited release adopted by Congress is most telling. DOE Deputy Secretary John O Leary wrote that even DOE s proposed broader release would not have affected the United States liability, if any, for actions taken either prior to or after completion of the remedial action, but would merely have protected the United States during the time specified. In any event, although we would prefer a broader waiver, DOE is pleased that the concept of a limited release of liability has been accepted by the Subcommittee as reflected 4 The Administration bill is reproduced at pages 3-12 of Uranium Mill Tailings Control Act of 1978, Hearings before the House Subcomm. on Energy and Power of the Comm. on Interstate and Foreign Commerce, 95th Cong., 2d Sess., Serial No Both the State and the tribal waiver provisions in the Administration bill state that in any cooperative agreement [t]he United States shall be released from any radioactive materials-related liability or claim thereof related to any remedial action from the date of enactment of this Act through and including the completion of any remedial action authorized by this Act. Id. at 7 (state), 9 (tribe). 21

36 USCA Case # Document # Filed: 01/18/2013 Page 36 of 76 in Section 102(c) [sic; should be 103(c)] of the Committee Print. Id. Thus, even the broader waiver and release sought by DOE would not have precluded landowners from claiming violations of laws arising after the completion of remedial action, and the more limited one adopted by Congress surely did not. The structure of UMTRCA is also consistent with the Nation s position. Cooperative agreements with tribes, but not with states, are required to provide that [t]he remedial action shall be selected and performed in accordance with section 7918 of this title [relating to EPA regulations] by the Secretary. 42 U.S.C. 7915(a)(2); cf. 42 U.S.C. 7913(c). That requirement is consistent with the Secretary s continuing trust duties, see Report at 39, and the principle that ambiguities in statutes intended to benefit tribes should be construed in the tribes favor, see City of Roseville v. Norton, 348 F.3d 1020, 1032 (D.C. Cir. 2003), cert. denied, 541 U.S. 974 (2004); Cobell v. Norton, 240 F.3d 1081, 1103 (D.C. Cir. 2001), a rule of interpretation also applicable to the 1985 Agreement itself, see Ramah Navajo Chapter v. Salazar, 644 F.3d 1054, 1062 (10th Cir. 2011), aff d, 132 S.Ct (2012). And the part of the tribal cooperative agreement that is to have life after completion of the remedial action is then separately stated, in 42 U.S.C. 7915(a)(3) (cooperative agreement to grant DOE a permanent right of entry at any time to inspect such processing site in furtherance of the provisions of this subchapter... and 22

37 USCA Case # Document # Filed: 01/18/2013 Page 37 of 76 to enforce any rules prescribed under this chapter ). Finally, the District Court s holding improperly reduces the independent reach of the APA. The court below reasoned that, because the Nation sought relief that might be foreclosed under one statute, it is necessarily precluded from bringing a claim otherwise cognizable under the APA. The Supreme Court has recently ruled otherwise. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct (2012). Indeed, under the Government s theory, anyone with standing except the Nation could sue to remedy environmental damage caused by the violation of EPA standards at the Mill under the APA and arising after completion of remedial activities. This nonsensical result cannot reasonably be attributed to Congress. B. The Fact that Congress Gave DOE Authority to Restore Groundwater for All Time Does not Mean that DOE Can Never Be Held to Account for Failing to Do So. The Nation alleged facts showing that DOE s violations of UMTRCA and mandatory regulations at the Mill are causing an imminent and substantial endangerment to the Navajo people, primarily because of the worsening contamination of the Navajo Aquifer from the Mill. E.g., JA140-43, , 159, 161, ( 1, 5-7, 20, 64, 70, 90-98). The Nation invoked the APA and sought both declaratory and injunctive relief for those violations. JA145-46, 174 ( 16(d), 17; Prayer for Relief H, I(3), (5)). The court below dismissed the Nation s Fourth 23