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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions