United States: D.C. Circuit Clarifies Basis For Indian Trust Claims

In April, the United States Court of Appeals for the District of Columbia Circuit decided El Paso Natural Gas Co. v. United States, No. 12-5156 (D.C. Cir. Apr. 4, 2014). The decision narrowly interprets the government's duty to remediate uranium waste sites and toxic dumps located on tribal lands, and sets a high bar for Indian tribes to assert breach of trust claims against the federal government.

The case involved historical contamination on three sites on Navajo and Hopi land near Tuba, Arizona, including a former uranium processing mill site and two waste dumps, one of which had been operated by the U.S. Bureau of Indian Affairs ("BIA"). El Paso Natural Gas Company, the successor-in-interest to a former operator of the uranium mill site, filed claims against the United States under the Uranium Mill Tailings Radiation Control Act of 1978 ("Mill Tailings Act") and the Resource Conservation and Recovery Act ("RCRA"). The Navajo Nation ("the Tribe") intervened as a plaintiff, asserting parallel claims under the Mill Tailings Act and RCRA, as well as additional claims for breach of trust under federal common law and under the American Indian Agricultural Resource Management Act ("Indian Agricultural Act") and the Indian Lands Open Dump Cleanup Act of 1994 ("Indian Dump Cleanup Act").

Statutory Claims

The D.C. Circuit affirmed, in all but a few aspects, the district court's dismissal of plaintiffs' claims. It affirmed the dismissal of most of the Tribe's RCRA claims under Section 113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), which deprives federal courts of jurisdiction to hear "challenges to removal or remedial action selected under" CERCLA. The court did, however, reject the government's argument that a suit challenging EPA's authority to invoke CERCLA is barred by Section 113(h), and expressed misgivings about possibility that Section 113(h) might allow EPA to delay remedial work at a site indefinitely. The D.C. Circuit also reversed the district court's dismissal of another RCRA claim based on a release of liability in a cooperative agreement between the Tribe and the Department of Energy for the remediation of the uranium mill site, holding that the claim fell outside the scope of the release. The court denied the remaining claims under the Mill Tailings Act, the Indian Agricultural Act, and the Indian Dump Cleanup Act.

Breach of Trust Claims

The most significant portion of the D.C. Circuit's opinion is its ruling on the Tribe's breach of trust claims, which had been asserted under the Administrative Procedure Act ("APA"). The Tribe argued that the trust-creating language of 25 U.S.C. § 640d-9(a) (providing that the lands at issue "shall be held in trust by the United States exclusively for the Navajo Tribe"), combined with the federal government's actual use and control of the former mill sites and dumps, created an enforceable trust duty. The D.C. Circuit rejected the Tribe's argument, finding the statute insufficient to create an enforceable trust.

Following Supreme Court case law addressing trust claims brought under the Indian Tucker Act, 28 U.S.C. § 1505, the D.C. Circuit acknowledged the "loose congruence" between the claims in United States v. White Mountain Apache Tribe, 537 U.S. 465, 475 (2003) ("White Mountain Apache Tribe"), and the instant case, as both cases involved trust lands allegedly under government control. The court ultimately determined, however, that the heightened requirements for breach of trust claims set forth in United States v. Navajo Nation, 556 U.S. 287 (2009) ("Navajo Nation"), ultimately controlled the resolution of this case and precluded finding an enforceable trust.

In White Mountain Apache Tribe, the Court held that the trust-creating statute, combined with the federal government's use and occupancy of the land, supported an enforceable trust duty, which was breached when the federal government allowed a historic fort on the trust lands to fall into disrepair. In the instant case, the D.C. Circuit first distinguished the statutory language at issue in White Mountain Apache Tribe, which described the land as being held in trust for the tribe and explicitly allowed the federal government to use and improve tribal lands, from 25 U.S.C. § 640d-9(a), which does not impose any management duty on the federal government. Consequently, the court found that 25 U.S.C. § 640d-9(a) creates only a limited or "bare" trust.

The court next turned to Navajo Nation, in which the Supreme Court held that "comprehensive control" over trust land is insufficient to find an enforceable trust duty, in the absence of a "specific right-creating or duty-imposing" law. Applying this rule to the Tribe's claim, the D.C. Circuit ruled that although the federal government allegedly took control and decision-making authority over the uranium mill and the dump sites, the record did not suggest that the government took control of the premises "pursuant to § 640d-9(a)"—the trust-creating statute. The D.C. Circuit noted that in Navajo Nation the Supreme Court reversed the Federal Circuit's decision to enforce the trust duty based on the same combination of a "bare" trust statute, plus the federal government's actual control over the land, as asserted by the Tribe in this case. Lastly, the court took no notice of the fact that depredation of the trust corpus in this case threatens the health and welfare of the Tribe and its environment, which differentiates this case from past, seminal breach-of-trust cases.

Although much of the D.C. Circuit's opinion in El Paso Gas Company traverses well-worn ground, it does not attempt to reconcile Navajo Nation with White Mountain Apache Tribe, as some may have hoped it would. Instead, the D.C. Circuit reinforced the high bar set by Navajo Nation that Indian tribes must overcome in order to succeed on a breach of trust claim. Tribes intending to argue their breach-of-trust claim under White Mountain Apache Tribe should consider carefully whether the duty allegedly breached by the federal government stems from a statute or other source of law that imposes a specific duty on the federal government and whether the federal government acted or failed to act "pursuant to" that law.

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