FOR THE DISTRICT OF ARIZONA

Transcription

1 Case :-cv-0-dgc Document 0 Filed 0// Page of 0 GREENBERG TRAURIG, LLP ATTORNEYS AT LAW SUITE 00 EAST CAMELBACK ROAD PHOENIX, ARIZONA 0 (0) -000 Pamela M. Overton, SBN 000 (overtonp@gtlaw.com) Daniel J. Schnee, Daniel_Schnee@kindermorgan.com Colorado Bar No., (admitted pro hac vice) EL PASO NATURAL GAS COMPANY, L.L.C. Two North Nevada Colorado Springs, CO (Telephone) 0..0 (Facsimile) John Voorhees, voorheesj@gtlaw.com Colorado Bar No. 0, (admitted pro hac vice) Christopher J. Neumann, neumannc@gtlaw.com Colorado Bar No., (admitted pro hac vice) Gregory R. Tan, tangr@gtlaw.com Colorado Bar No. 0, (admitted pro hac vice) GREENBERG TRAURIG, LLP The Tabor Center 00 Seventeenth Street Twenty-Fourth Floor Denver, CO (Telephone) 0..0 (Facsimile) Attorneys for El Paso Natural Gas Company, L.L.C. El Paso Natural Gas Company, L.L.C., v. Plaintiff and Counterclaim- Defendant, United States of America; et al., IN THE UNITED STATES DISTRICT COURT Defendants and Counter-Claimants. FOR THE DISTRICT OF ARIZONA CASE NO. :-cv-0-dgc EL PASO NATURAL GAS COMPANY'S SUPPLEMENTAL MEMORANDUM IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT

2 Case :-cv-0-dgc Document 0 Filed 0// Page of TABLE OF CONTENTS I. BACKGROUND... II. ARGUMENT... A. The United States Has Consistently Asserted Ownership Over The Reservation; It Should Be Estopped From Disclaiming Ownership Of The Mine Sites Where Ownership Comes With Significant Costs.... B. The Government s Owner Liability Under CERCLA Is Not Precluded By The Existence Of The Navajo Nation s Compensable Interest In Its Lands.... C. Navajo Law Regarding Property Ownership And Trusts Supports A Finding That The United States Is Owner For CERCLA Purposes.... III. CONCLUSION... 0 i

3 Case :-cv-0-dgc Document 0 Filed 0// Page of 0 Federal Cases TABLE OF AUTHORITIES Cherokee Nation v. Hitchcock, U.S. (0)... City of Los Angeles v. San Pedro Boat Works, F.d 0 (th Cir. 0)..., Cobell v. Norton, 0 F.d (D.C. Cir. 00)... Dodge v. Nakai, F. Supp. (D. Ariz. )... Heckman v. United States, U.S. ()... Johnson v. M Intosh, U.S. ()... Laurel Park Community, LLC v. City of Tumwater, F.d (th Cir. 0)... Lone Wolf v. Hitchcock, U.S. (0)... Long Beach Unified Sc. Dist. V. Dorothy B. Godwin California Living Trust, F.d (th Cir. )...,,, Manufactured Housing Communities v. Washington, P.d (Wash. 000)... McClanahan v. Arizona State Tax Comm n, U.S. ()... Merrion v. Jicarilla Apache Tribe, U.S. 0 ()... Navajo Nation v. United States, F.d (Fed. Cir. 0)... Pakootas v. Teck Cominco Metals, Ltd., F. Supp. d (E.D. Wash. 00)... Pittsburg & Midway Coal Min. Co. v. Yazzie, 0 F.d (th Cir. 0)..., Sekaquaptewa v. MacDonald, F.d 0 (th Cir. 0)... Tavares v. Whitehouse, F.d (th Cir. 0)... ii

4 Case :-cv-0-dgc Document 0 Filed 0// Page of 0 Tiger v. Western Investment Co., U.S. ()... U.S. v. Newmont USA Ltd., 0 F. Supp. d 0 (E.D. Wash. 00)...,, U.S. v. S. Pac. Transp. Co., F.d (th Cir. )..., United States v. Bryant, S. Ct. (0) (Thomas, J. concurring)... United States v. Candelaria, U.S. ()..., United States v. Jicarilla Apache Nation, U.S. (0)..., United States v. Minnesota, 0 U.S. ()... United States v. Wheeler, U.S. ()..., Wells Fargo Bank, N.A. v. Renz, F. Supp. d (N.D. Cal. 0)... Williams v. Lee, U.S. ()... Winton v. Amos, U.S. ()... Yavapai-Prescott Indian Tribe v. Watt, 0 F.d (th Cir. )... Navajo Cases In the Matter of Estate of Wauneka, Nav. R. (Nav. Sup. Ct. )... Means v. District Court, Nav. R. (Nav. Sup. Ct. )... Navajo Nation Oil & Gas Co. v. Window Rock Dist. Court, No. SC-CV--, 0 WL (Navajo June 0, 0)... Federal Statutes U.S.C.... Act of June,, Stat. 0,... Stat.... iii

5 Case :-cv-0-dgc Document 0 Filed 0// Page of Stat Regulations C.F.R Other Authorities Charles Wilkinson, Blood Struggle (00) at -, -... Cohen, Treatise on Federal Indian Law,.0-.0 (00 ed.)...,, Dennis Wagner and Craig Harris, Why it s so difficult to build homes on the Navajo Reservation, Ariz. Rep. (Dec., 0), available at Kathryn Sweet, Political Negotiation and Jurisdiction of the Navajo Nation, Arizona, and Public Law 0, W. Legal Hist., (0)... Peter Iverson and Monty Roessel, eds., For Our Navajo People: Diné Letters, Speeches, and Petitions, 00-0, pp iv

6 Case :-cv-0-dgc Document 0 Filed 0// Page of 0 Pursuant to the Court s June, 0 Order, Doc. ( Order ), El Paso submits this Supplemental Memorandum addressing the history, laws, [and] governmental relationships of the Navajo Reservation, Order at, and their application to the law that governs the Mine Sites, the relationship between treaty and executive order reservations, and the role played by the indicia of ownership. Id. at -. Addressing these issues, the United States is unmistakably liable as a CERCLA owner because it holds fee title and exercises plenary authority over the Reservation and the Mine Sites. I. BACKGROUND The United States (or the Government ) established the Navajo Indian Reservation in through a treaty that recognized the Navajo Tribe (later the Navajo Nation ) and ended the U.S. Army s forced removal of,00 Navajos (or Diné ) to eastern New Mexico Territory ( Treaty ). Williams v. Lee, U.S., (). [T]his treaty set apart for their permanent home a portion of what had been their native country. Id. It is the basic document which establishes relations between the United States of America and the Navajo Nation. Means v. District Court, Nav. R., (Nav. Sup. Ct. ). The Treaty expressly reserved the rights of the United States, exempting federal personnel from the Navajo Nation s exclusionary power. Williams, U.S. at ; Dodge v. Nakai, F. Supp., (D. Ariz. ). The Government has expanded the Reservation times since creating it, including through Executive Orders, particularly those of,,,, and 00, and through an Act of Congress dated June,, Stat. 0 ( Act ). Pittsburg & Midway Coal Min. Co. v. Yazzie, 0 F.d, & (th Cir. 0); Kathryn Sweet, Political Negotiation and Jurisdiction of the Navajo Nation, Arizona, and Public Law 0, W. Legal Hist., (0). The Mine Sites are located in post- sections of the Reservation lands added to the Reservation through an Executive Order dated January, 00, an Executive Order dated May,, and the Act. See U.S. Controverting Statement of Facts [Doc. No. 0], 0-. Congress, by statute, expressly affirmed these Executive Orders (strengthening their status

7 Case :-cv-0-dgc Document 0 Filed 0// Page of 0 beyond simply executive action), reserved certain water-power and power-site lands, and provided the Navajo would not be paid any proceeds or royalties from water power developed on these lands. Act of June,, Stat. 0, ; see also Sekaquaptewa v. MacDonald, F.d 0, 0 (th Cir. 0). The United States also took lands away from the Navajo Tribe. See, Cohen, Treatise on Federal Indian Law,.0-.0 (00 ed.). For example, a large area of the Reservation now known as the checkerboard was allotted over Navajo objections and fell largely into non- Indian hands. See Pittsburg & Midway Coal, 0 F.d at -. Additionally, the United States ham-fisted exercise of its plenary control of the Reservation s Western Navajo Agency, where the Mine Sites are located, caused the longstanding and acrimonious land dispute between the Navajo Nation and the Hopi Tribe. The portion of the Reservation created by the Act (the Act Reservation ) was the ancestral home of both Navajos and Hopis, yet the Act provided no guidance as to how the beneficial interests in the land should be allocated between members of the respective tribes. Navajo Nation v. United States, F.d, 0 (Fed. Cir. 0). After ignoring the issue for decades, the Government sporadically intervened to dictate which tribe should be treated as a beneficial owner and what their respective members would be allowed to do, ultimately imposing a half-century development moratorium on both tribes (the so-called Bennett Freeze ). See id. at. II. ARGUMENT A. The United States Has Consistently Asserted Ownership Over The Reservation; It Should Be Estopped From Disclaiming Ownership Of The Mine Sites Where Ownership Comes With Significant Costs. The events summarized above are but a few examples of how the United States seized for itself legal title to historical lands of the Navajo Nation and, consistent with the Treaty, has only allowed the Navajo Nation to retain such rights of occupation and use as the United States saw fit. This exercise of ownership status by the Government from the Treaty to this day is consistent with longstanding principles of federal Indian law. As Chief Justice John Marshall

8 Case :-cv-0-dgc Document 0 Filed 0// Page of 0 explained: While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. Johnson v. M Intosh, U.S.,, L. Ed. (). These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy. Id. Not surprisingly, the Treaty echoes Johnson; it speaks not of ownership but of the use and occupation by the Navajo Tribe of lands reserved by the United States. Treaty, Art. II ( Stat. ). Therefore, the Navajo Nation is not an owner in the ordinary meaning of the term, Long Beach Unified Sc. Dist. V. Dorothy B. Godwin California Living Trust, F.d, (th Cir. ), at least not according to the vast weight of federal and Navajo court decisions interpreting the legal and political relationship between the Navajo Nation and the United States. More specifically, the Reservation contains natural resources such as uranium which may only be developed pursuant to federal statutes administered by the U.S. Department of the Interior. At the June, 0 Hearing on the instant Motion, the United States argued that its The United States Congress also has the power to take action in derogation of tribal property interests, by granting leases and rights-of-way on Indian lands, as well as disposing of Indian property without the consent of Indian owners. Cohen, at.0 (collecting cases); see also Cobell v. Norton, 0 F.d, - (D.C. Cir. 00) (reviewing the contentious and tragic periods of the relationship between the United States and tribes). Ownership of Reservation land has been a function of well-documented political realities. Uranium leasing by non-indians coincided with a national policy that eliminated federal recognition of more than 0 Indian tribes and severely limited the nascent political authority of the Navajo Indian Tribe (as it was known until ). Charles Wilkinson, Blood Struggle (00) at -, -. The fledgling Tribal government confronted with what amounted to the United States sanctioned trespass of the Reservation by uranium prospectors was at best an owner in name only. See Peter Iverson and Monty Roessel, eds., For Our Navajo People: Diné Letters, Speeches, and Petitions, 00-0, pp. - (speech to Tribal Council in which then-chairman Paul Jones details how the Indian Bureau controlled the mineral-leasing process). The harsh realities caused by the reality of the United States fee ownership persist. See Dennis Wagner and Craig Harris, Why it s so difficult to build homes on the Navajo Reservation, Ariz. Rep. (Dec., 0), available at

9 Case :-cv-0-dgc Document 0 Filed 0// Page of 0 authority over the natural resources of the Reservation is analogous to the administration of zoning laws by the District of Columbia over the size and placement of a garden shed, and that the D.C. government s administration of the zoning laws does not make it the owner of the shed. On its face, that argument is inapt because, in this case, the United States already has stipulated that it owns the shed (i.e., the Reservation and the Mine Sites). Further, as the Supreme Court recently affirmed, the Government s plenary power over tribal property (the shed, the backyard, and the house), and indeed over all Indian affairs, is virtually limitless. United States v. Jicarilla Apache Nation, U.S. (0). The Jicarilla Court held: Throughout the history of the Indian trust relationship, we have recognized that the organization and management of the trust is a sovereign function subject to the plenary authority of Congress. See Merrion v. Jicarilla Apache Tribe, U.S. 0,, n., S. Ct., L. Ed. d () ( The United States retains plenary authority to divest the tribes of any attributes of sovereignty ); United States v. Wheeler, U.S.,, S. Ct., L. Ed. d 0 () ( Congress has plenary authority to legislate for the Indian tribes in all matters, including their form of government ); Winton v. Amos, U.S.,, S. Ct., L. Ed., Ct. Cl. () ( Congress has plenary authority over the Indians and all their tribal relations, and full power to legislate concerning their tribal property ); Lone Wolf v. Hitchcock, U.S.,, S. Ct., L. Ed. (0) ( Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the government ); Cherokee Nation v. Hitchcock, U.S., 0, S. Ct., L. Ed. (0) ( The power existing in Congress to administer upon and guard the tribal property, and the power being political and administrative in its nature, the manner of its exercise is a question within the province of the legislative branch to determine, and is not one for the courts ); see also United States v. Candelaria, U.S.,, S. Ct., 0 L. Ed. (); Tiger v. Western Investment Co., U.S.,, S. Ct., L. Ed. (). U.S. at -. Setting aside for the moment the specific national emergency which was the indisputable source of the Government s interest in uranium production from the Mines Sites, the United States status as an owner cannot be divorced from the United States execution of its Indian trust duties:

10 Case :-cv-0-dgc Document 0 Filed 0// Page of 0 [W]e have explained that the Government has a real and direct interest in the guardianship it exercises over the Indian tribes; the interest is one which is vested in it as a sovereign. United States v. Minnesota, 0 U.S.,, S. Ct., 0 L. Ed. (). This is especially so because the Government has often structured the trust relationship to pursue its own policy goals. Thus, while trust administration relat[es] to the welfare of the Indians, the maintenance of the limitations which Congress has prescribed as a part of its plan of distribution is distinctly an interest of the United States. Heckman v. United States, U.S.,, S. Ct., L. Ed. 0 (); see also Candelaria, supra, at -, S. Ct., 0 L. Ed.. Jicarilla, U.S. at -. The United States has a sovereign interest in the administration of Indian trusts distinct from the private interests of those who may benefit from its administration While one purpose of the Indian trust relationship is to benefit the tribes, the Government has its own independent interest in the implementation of federal Indian policy. Id. at -. In fact, the Supreme Court adopted exactly the argument then advanced by the U.S. Department of Justice, namely that the Government s obligations to tribes and individual Indians are not derivative of the beneficiary s property interest, but rather are a distinctly sovereign function. Brief of United States, Appellant-Petitioner, 0 U.S. S. Ct. Briefs LEXIS, *. The Ninth Circuit follows this well-recognized principle, namely Congress s constitutionally prescribed primacy in Indian affairs, routinely citing to the Supreme Court s th Century precedents today. See, e.g., Tavares v. Whitehouse, F.d (th Cir. 0). Because the Supreme Court s precedents have endowed Congress with an allencompassing power over all aspects of tribal sovereignty, United States v. Bryant, S. Ct., (0) (Thomas, J. concurring) (quoting United States v. Wheeler, U.S., ()), it is clear that the United States has ultimate authority over whether mining occurs on the Reservation (or not), how that mining is to take place, and for how long. As the Ninth Circuit has similarly explained, tribes have the exclusive right to possession but title to the lands remained with the United States. Congress has plenary authority to control use, grant adverse interests or extinguish the Indian title. U.S. v. S. Pac. Transp. Co., F.d, (th Cir. ); U.S. v. Newmont USA Ltd., 0 F. Supp. d 0, (E.D. Wash. 00). Once the Secretary has approved an Indian minerals lease, only the Secretary may nullify it;

11 Case :-cv-0-dgc Document 0 Filed 0// Page of 0 tribes have no unilateral ability to cancel Secretarially-approved leases. Yavapai-Prescott Indian Tribe v. Watt, 0 F.d, - (th Cir. ). Congress has forbidden tribes from alienating lands to any entity other than the United States. U.S.C. (codifying the Non-Intercourse Act). Moreover, all Indian mineral leasing records are deemed to be the exclusive property of the United States. C.F.R..00. Against the legacy, the Government should not now be permitted to disclaim the responsibilities that come along with its assertion of ownership, especially in light of its central role in driving domestic uranium production to meet a national emergency. CERCLA does not permit parties to assert ownership only when it is convenient. We suspect the [United States] would be less eager to call someone else an owner of its property if there were gold there, rather than a toxic waste pit. Long Beach, F.d at (th Cir. ). B. The Government s Owner Liability Under CERCLA Is Not Precluded By The Existence Of The Navajo Nation s Compensable Interest In Its Lands. This Court has asked for additional briefing on the relevance of compensable Fifth Amendment property rights, and on the distinction between executive order reservations and treaty reservations as to the question of whether the United States is an owner for CERCLA purposes. Neither of these issues should have any relevance to the determination of CERCLA liability. Although Newmont suggests that the distinction between executive order and other types of reservations might have relevance for the question of CERCLA ownership, the facts of the Newmont case did not require the Newmont court to examine the issue in detail, and any discussion of the CERCLA status of non-executive order lands is dicta. Instead, it is blackletter law that executive order reservations and reservations established by Congress or through treaty are governed by precisely the same legal principles, unless there is something in the specific history of a particular reservation that leads to a different result, a situation not present here. Cohen at.0[]. Federal law routinely handles Indian country issues without making any distinction between these categories. Id. The fundamental problem with an analysis that focuses on the distinction between executive order and other reservations, or on the right to compensation to the tribe for a taking

12 Case :-cv-0-dgc Document 0 Filed 0// Page of 0 of property, is that it assumes that if the Navajo Nation is the real owner of the land, then the United States cannot be. This is not how CERCLA works, or how property law works. That the Navajo Nation holds constitutionally-protected property rights and interests in the Reservation does not mean that the United States therefore lacks property rights sufficient to make it an owner under CERCLA. By way of illustration, it is commonplace for more than one party to be the owner of a site, and ownership can be split in many different ways, e.g., spouses might own property as tenants in common; a mining company might own the subsurface estate while another party owns the surface; the land might be held in trust, or in probate proceedings, or subject to a servitude that limits the ability to put it to beneficial use. The question whether the Navajo Nation or the United States owns the Mine Sites is not an either/or question because CERCLA is not a statutory scheme designed to find a single owner that may be subject to liability. Instead, CERCLA liability has been described as a black hole that indiscriminately As the Court points out, the Ninth Circuit has refused to follow the line of cases adopting a site control test or indicia of ownership test for CERCLA owner liability. Order, at. El Paso agrees with this conclusion, but submits, as the Newmont court observed, that the facts presented in support of its Motion bearing on the United States bundle of ownership rights are relevant and further supportive of the government s CERCLA owner liability. See Newmont, 0 F. Supp. at - ( the United States bundle or ownership rights, along with its title to the property, is more than sufficient to find the United States to be an owner under CERCLA ). The Ninth Circuit has explained that these property rights include the () right of occupation; () right of excluding others; () right of disposition, or the right of transfer in the integral right to other persons; [and] () right of transmission. Laurel Park Community, LLC v. City of Tumwater, F.d, (th Cir. 0) (quoting Manufactured Housing Communities v. Washington, P.d, (Wash. 000)). Although the Navajo Nation has several of these rights, a right of possession in the Mine Sites and an inherent authority to exclude, it does not have a right to transfer or sell the property, or a right of transmission. By contrast, the United States has all four. Congress has plenary authority to control use, grant adverse interests or extinguish the Indian title. S. Pac. Transp. Co., F.d at. Among other things, the United States signed and approved mining permits and leases providing the manner in which mining would occur at the Mine Sites, and reserving to itself certain rights of ownership. See, e.g., Motion, at -. These rights to control use of the property, together with its fee title, make the United States liable as a CERCLA owner. See, e.g., Wells Fargo Bank, N.A. v. Renz, F. Supp. d, - (N.D. Cal. 0) (holding CERCLA owner must hold fee title or equivalent bundle of rights, and finding possessory interest conveyed by lease not sufficient where fee holder retained power to control use of property) (citing Long Beach, F.d at ; San Pedro, F.d at n.).

13 Case :-cv-0-dgc Document 0 Filed 0// Page of 0 devours all who come near it. Long Beach Unified Sch. Dist., F.d at (quotation omitted). The fact that the Navajo Nation had compensable ownership rights in the minerals dug from the Mine Sites does not absolve the United States of its liability as an owner under CERCLA. No one disputes that Indian tribes have certain rights in land held by the government in trust, regardless of whether the government is an owner under CERCLA. Newmont, 0 F. Supp. d at. C. Navajo Law Regarding Property Ownership And Trusts Supports A Finding That The United States Is Owner For CERCLA Purposes. [B]ecause CERCLA did not provide a definition of owner, we should read the statute as incorporating the common law definitions of its terms. City of Los Angeles v. San Pedro Boat Works, F.d 0, (th Cir. 0) (quotation omitted). In previous briefing, El Paso relied on Arizona law to address the question of the ownership status of a trustee, holding title in the name of a beneficial owner, but this Court opined that the question is likely governed by Navajo law, rather than Arizona law. Order at. On the Navajo Nation, state law is typically displaced by Navajo Nation law. McClanahan v. Arizona State Tax Comm n, U.S., - () (holding that state laws are not applicable to tribal Indians on an Indian reservation except where Congress has expressly provided that State laws shall apply. ). This distinction does not, however, significantly alter the legal analysis. As discussed below, standard common law principles of trust law are routinely applied by Navajo courts, but the most directly relevant authorities are the plenary power cases discussed above. This is because Navajo law reflects the reality that the United States is the fee owner. Because there is little fee land on the Navajo Nation, there is very little reported Navajo case law on questions regarding the holder of legal title to real property, although the Navajo Nation has a large and robust body of law governing leases and other interests in land. This is only to be expected given that the Nation lacks legal title to federal trust land. Because the Navajo Nation may never own legal title to such trust lands or lease or alienate them without the Government s approval and action, Navajo law is full of various legal work-arounds of varying creativity designed to safeguard the Navajo government s and individuals use and occupation

14 Case :-cv-0-dgc Document 0 Filed 0// Page of 0 of property consistent with the Treaty. Trust law, unlike the law governing fee property, is routinely used by Navajo courts outside the context of the relationship with the United States, and Navajo law recognizes the familiar high fiduciary duties owed by a trustee. See Navajo Nation Oil & Gas Co. v. Window Rock Dist. Court, No. SC-CV--, 0 WL (Navajo June 0, 0). For example, Navajo law recognizes a unique type of trust dealing with interests in real property, a customary trust, which is designed to reconcile the Navajo practice of holding property in extended family units with the need to put title over federal grazing permits (which essentially serve the function of land titles on much of the Reservation) in the name of an individual. In the Matter of Estate of Wauneka, Nav. R., (Nav. Sup. Ct. ). The customary trust is a unique Navajo innovation which requires the appointment of a trustee to hold the productive property for the benefit of the family unit. Id. The frequent use of this and similar Navajo legal innovations illustrate how the familiar concepts of trustee and beneficial owner have been incorporated into Navajo law and carefully adapted to recognize property rights and interests based on use and occupancy rather than actual ownership of federal trust land. None of this alters the stubborn reality that the Government from its establishment of the Reservation onward has always reserved ownership of Reservation trust lands exclusively to itself, both through the use and occupancy limitation in the Treaty and more generally through the plenary power doctrine. III. CONCLUSION The United States is liable as a CERCLA owner under section (a) because it holds title to and has plenary authority over the Mine Sites at issue, in its own sovereign interest distinct from the Navajo Nation s, whose legal interests in these lands are strictly limited to use and occupancy as provided by the Treaty and recognized by both Navajo and federal courts ever since. Congress drafted CERCLA so that Indian tribes cannot be CERCLA liable parties, and it expressly waived the United States sovereign immunity for CERCLA liability. See Pakootas v. Teck Cominco Metals, Ltd., F. Supp. d (E.D. Wash. 00). At the end of the day, the

15 Case :-cv-0-dgc Document 0 Filed 0// Page of 0 plain words of the statute must prevail, and the United States, as owner of fee title having plenary authority over the Mine Sites must be found the CERCLA owner of the Mine Sites. The United States cannot seriously contend that its CERCLA owner liability under the statute enacted more than a century after the Reservation was established, 0-0 years after its expansion by the Executive Orders, and nearly fifty years after the Act turns on what aspect of the patchwork system of federal land holding regimes is in place. It does not matter whether Indian land is held in trust pursuant to a treaty or an executive order or held in restricted fee or pursuant to a land-into-trust decision by the Department of the Interior or a specific statute enacted by Congress; the United States holds fee title and exercised plenary power as to all such iterations. No selective amnesia by the Government changes the fact that the United States plenary power is all-encompassing, Wheeler, U.S. at and distinctly vested in the United States, Jicarilla, U.S. at -. The United States degree of administrative responsibility is rendered a nullity by the resounding clarity of plenary power. Navajo law reflects nothing to the contrary and indeed, illustrates the extensive work-arounds the Navajo Nation has adapted to protect property rights where fee title and plenary power always rests with the Government. Congress could not have intended the absurd result that there is no CERCLA owner of the Mine Sites, or that the only owner is its ward, here the Navajo Nation, especially given the broad, remedial purposes of the statute and Congress s decision to exempt tribes from CERCLA liability. The remedy that Congress felt it needed in CERCLA is sweeping: everyone who is potentially responsible for hazardous-waste contamination may be forced to contribute to the costs of cleanup. United States v. Bestfoods, U.S., n. () (quotation omitted).

16 Case :-cv-0-dgc Document 0 Filed 0// Page of Respectfully submitted this th day of June 0. By: /s/ Pamela M. Overton Pamela M. Overton GREENBERG TRAURIG, LLP Camelback Road, Suite 00 Phoenix, AZ (Telephone) 0..0 (Facsimile) Attorneys for El Paso Natural Gas Company Daniel J. Schnee (admitted pro hac vice) KINDER MORGAN, INC. Two North Nevada Colorado Springs, CO (Telephone) 0..0 (Facsimile) John Voorhees (admitted pro hac vice) Christopher J. Neumann, (admitted pro hac vice) Gregory R. Tan (admitted pro hac vice) GREENBERG TRAURIG, LLP The Tabor Center 00 Seventeenth Street Twenty-Fourth Floor Denver, CO (Telephone) 0..0 (Facsimile) 0

17 Case :-cv-0-dgc Document 0 Filed 0// Page of CERTIFICATE OF SERVICE I hereby certify that on June, 0, I electronically transmitted the attached document to the Clerk s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Michael C. Augustini Michael C. Martinez Paul Cirino UNITED STATES DEPARTMENT OF JUSTICE Environment and Natural Resources Division P.O. Box Washington, D.C. 00 michael.augustini@usdoj.gov michael.c.martinez@usdoj.gov paul.cirino@usdoj.gov 0 /s/ Tammy Mowen