United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 9, 2010 Decided January 28, 2011
No. 10-5080
EL PASO NATURAL GAS COMPANY,
APPELLANT
v.
UNITED STATES OF AMERICA, ET AL.,
APPELLEES
Consolidated with 10-5090
Appeals from the United States District Court
for the District of Columbia
(No. 1:07-cv-00905)
Jerry Stouck argued the cause for appellant El Paso
Natural Gas Company. David A. Taylor, pro hac vice, argued
the cause for Navajo Nation. With them on the briefs were
Robert Charrow, Maggie Sklar, Thomas L. Sansonetti, Troy
A. Eid, William G. Myers III, Christopher J. Neumann, and
Paul E. Frye.
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Michael T. Gray, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief was
Robert H. Oakley, Attorney. Eric G. Hostetler, Attorney, and
R. Craig Lawrence, Assistant U.S. Attorney, entered
appearances.
Before: ROGERS and TATEL, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: This case concerns two sites on
Navajo tribal lands that the Navajo Nation alleges were
contaminated by World War II and Cold War era uranium
mining. Pursuant to the Uranium Mill Tailings Remediation
and Control Act (UMTRCA), which created a mechanism to
cleanup after such activities, the Navajo Nation asked the
Department of Energy to remediate both sites. The
department refused, and the district court declined to review
that decision, relying on a provision of UMTRCA stating that
“designations made, and priorities established, by the
Secretary under this section shall be final and not subject to
judicial review.” For the reasons set forth in this opinion, we
affirm.
I.
In the 1930s and 40s, “the uranium milling industry was
under the dominant control of the Federal Government. At
that time, uranium was being produced under Federal
contracts for the Government’s Manhattan Engineering
District and Atomic Energy Commission program.” H.R. Rep.
No. 95-1480, pt. 1, at 11 (1978). The uranium mining process
results in copious amounts of radioactive waste in the form of
uranium mill tailings, a sandy waste produced during ore
milling (from which only one to five pounds of usable
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uranium is extracted from every two thousand pounds of
mined ore). Id. (noting that nearly ninety million tons of such
waste “are attributable to Federally-induced production”).
Until “the early 1970’s[,] there was little official recognition
of the hazards presented by these tailings.” Id. As a result,
“mill tailings were left at sites, mostly in the Southwest, in an
unstable and unprotected condition,” creating a substantial
threat to public health. Id.
In 1978, Congress passed UMTRCA, a comprehensive
statute directing DOE, in cooperation with states and Native
American tribes, to undertake remedial action of all sites
contaminated by uranium “produced for sale to any Federal
agency prior to January 1, 1971 under a contract with any
Federal agency.” 42 U.S.C. § 7911(6)(A). UMTRCA gave the
Secretary of Energy one year from November 8, 1978, the
statute’s effective date, to “designate” uranium “processing
sites” where remediation was required and to prioritize those
sites. § 7912(a)(1), (a)(3)(b). Specifically, the statute required
the Secretary to designate twenty-two listed sites, as well as
any “other processing sites within the United States which he
determine[d] require[d] remedial action to carry out the
purposes of [UMTRCA].” § 7912(a)(1). UMTRCA defines
“processing site” to include both the mill site itself and “any
other real property or improvement thereon which—(i) is in
the vicinity of such site, and (ii) is determined by the
Secretary . . . to be contaminated with residual radioactive
materials derived from such site.” § 7911(6).
As to “vicinity” sites—the subject of this litigation—
UMTRCA directs the Secretary to include such properties in
the initial first year designation process but allows him to
make additional inclusions after the one year deadline. In
particular, section 7912(e) provides:
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(1) The designation of processing sites within
one year after November 8, 1978, under this section
shall include, to the maximum extent practicable,
[vicinity properties].
(2) Notwithstanding the one year limitation
contained in this section, the Secretary may, after
such one year period, include any [vicinity property]
as part of a processing site designated under this
section if he determines such inclusion to be
appropriate to carry out the purposes of [UMTRCA].
§ 7912(e). Central to the issue before us, UMTRCA also
contains a bar on judicial review. Section 7912(d) provides
that “[t]he designations made, and priorities established, by
the Secretary under this section shall be final and not subject
to judicial review.”
Two other statutory provisions are relevant to this case.
First, UMTRCA directs the Secretary to enter into
cooperative agreements with Native American tribes
regarding cleanup of designated processing sites on tribal
lands. § 7915. It contains a parallel provision requiring
agreements with states for sites not on tribal lands. § 7913.
Second, UMTRCA requires the Secretary to “encourage
public participation and, where appropriate, [to] hold public
hearings” in carrying out the Act. § 7921.
This case concerns one of the sites expressly listed in
section 7912(a)(1)—the Tuba City, Arizona, uranium mill,
which is located on Navajo Nation tribal lands. The Secretary
designated this site in 1979, entered into a cooperative
agreement with the Navajo Nation in 1985, and completed
cleanup in 1990.
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In the early 2000s, the Navajo Nation discovered that two
nearby properties, the Tuba City Landfill and the Highway
160 Site, were also contaminated and alleged that the Tuba
City Mill was the source of the contamination. In December
2003, the Navajo Nation sent a letter to the Secretary
explaining that the sites needed remediation and requesting a
meeting. In April of the following year, the Secretary replied
that DOE believed the sites had been contaminated by a
source other than the Tuba City Mill and so failed to qualify
for UMTRCA remediation. The Secretary nonetheless agreed
to set up a meeting.
The Navajo Nation shared the Secretary’s letter with the
El Paso Natural Gas Company, the successor in interest to the
company that had run uranium mining operations at the Tuba
City Mill. El Paso, concerned about its own possible liability
for harms caused by unremediated sites, brought suit against
DOE and several other federal agencies. Alleging, among
other things, that DOE’s denial of the Navajo Nation’s request
to include the two sites as vicinity properties was arbitrary
and capricious, El Paso asked the district court to issue a
judgment declaring that DOE had failed to adhere to its legal
obligation and that the Department, not El Paso, is “legally
liable for the remediation costs and damage to the
environment resulting from residual radioactive material or
other deleterious or hazardous substances that emanated . . .
from the Mill.” Amended Compl. ¶ 102. As part of this claim,
El Paso also alleged that DOE violated UMTRCA’s public
participation requirement by failing to hold a public meeting
before deciding that the Tuba City Landfill and the Highway
160 Site did not qualify for UMTRCA remediation. Id. ¶ 100.
The district court dismissed the request for declaratory
relief for want of subject matter jurisdiction, concluding that
El Paso’s claim was covered by section 7912(d)’s bar on
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judicial review. El Paso Natural Gas Co. v. United States,
605 F. Supp. 2d 224, 225 (D.D.C. 2009). Relying on the fact
that the definition of vicinity property is part of the definition
of processing site, the court reasoned that the decision to
“include” a vicinity property pursuant to section 7912(e)(2) is
“nothing more than to designate the scope—or boundaries—
of the processing site.” Id. at 228. In addition, the court
pointed out that section 7912(d), the jurisdiction-stripping
provision, contains no temporal limits and appears to apply to
all designations made pursuant to section 7912. Id. The
district court then responded to El Paso’s argument that “even
if DOE’s purported decision to not include the Properties as
part of the Mill processing site was in fact a designation, it
was a not a designation ‘made,’ but a designation ‘not made,’
and therefore § 7912(d) is inapplicable.” Id. at 229. The court
rejected this argument on the ground that “designations made”
include designations not made because “any decision to take
an affirmative action necessarily is a decision to not take its
inverse.” Id.
Although the district court indicated that section 7912(d)
might not foreclose judicial review of El Paso’s public
participation claim, the court nonetheless dismissed that claim
for want of final agency action pursuant to the Administrative
Procedure Act. 5 U.S.C. § 704 (authorizing review of “final
agency action”). The court explained that DOE’s April letter
did not qualify as final agency action because it merely
“informed the Navajo Nation of DOE’s understanding of the
relevant state of affairs” and agreed to set up a meeting. Id. at
229 n.8.
The district court granted the Navajo Nation’s motion to
intervene. El Paso now appeals, arguing that we have
jurisdiction despite section 7912(d) and that the April letter
constituted final agency action. Because, for the reasons
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explained below, we agree that the district court lacked
jurisdiction, we have no need to reach the question of final
agency action with regard to El Paso’s arbitrary and
capricious claim. Trudeau v. FTC, 456 F.3d 178, 183–85
(D.C. Cir. 2006) (explaining that the APA’s final agency
action requirement is non-jurisdictional). Nor need we reach
that question with regard to El Paso’s public participation
claim because, by asserting in its opening brief that this claim
was inseverable from the arbitrary and capricious claim, the
company forfeited any argument that the claim might fit
within an exception to section 7912(d)’s bar on judicial
review. Appellant’s Br. 52 n.6. Our review is de novo. Nat’l
Air Traffic Controllers Ass’n v. Fed. Serv. Impasses Panel,
606 F.3d 780, 786 (D.C. Cir. 2010) (“We review de novo the
district court’s grant of a motion to dismiss for lack of subject
matter jurisdiction.” (internal quotation marks omitted)).
II.
When considering whether a statute bars judicial review,
“[w]e begin with the strong presumption that Congress
intends judicial review of administrative action.” Bowen v.
Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986).
This presumption applies even where, as here, the statute
expressly prohibits judicial review—in other words, the
presumption dictates that such provisions must be read
narrowly. See Dart v. United States, 848 F.2d 217, 221 (D.C.
Cir. 1988). The question before us, then, is whether section
7912(d), read in light of the statute’s structure and legislative
history, overcomes the presumption and bars review of
section 7912(e)(2) decisions to include additional vicinity
property as part of a previously designated processing site.
Bowen, 476 U.S. at 673 (directing courts to look at both the
statutory language and the legislative history to determine
congressional intent with respect to availability of judicial
review); Kucana v. Holder, 130 S.Ct. 827, 835–39 (2010)
8
(directing courts to consider the statutory structure). This bar
is relatively high. As the Supreme Court has explained,
“where substantial doubt about the congressional intent exists,
the general presumption favoring judicial review of
administrative action is controlling.” Bowen, 476 U.S. at 672
n.3 (internal quotation marks omitted). Thus, “[w]hen a
statute is ‘reasonably susceptible to divergent interpretation,
we adopt the reading that accords with traditional
understandings and basic principles: that executive
determinations generally are subject to judicial review.’ ”
Kucana, 130 S.Ct. at 839 (quoting Gutierrez de Martinez v.
Lamagno, 515 U.S. 417, 434 (1995)).
El Paso argues that section 7912(d) precludes review
only of designations made during the first year pursuant either
to section 7912(a), requiring the Secretary to designate and
prioritize mill sites, or to section 7912(e)(1), requiring the
Secretary to attempt to identify vicinity property within that
first year. The statute, El Paso argues, creates two separate
programs. The first includes activities relating to the two
sections just described and was designed to be completed
quickly, as evidenced by the one-year limitation and the bar
on judicial review. The second includes actions taken
pursuant to section 7912(e)(2), which calls for “inclusion” of
additional vicinity properties. This second program has no
such time limit and, according to El Paso, no bar on judicial
review.
As evidence for this division, El Paso points to three
features of UMTRCA’s text. First, it notes the tense
difference between sections 7912(e)(1) and (e)(2). According
to subsection (e)(1), “designation of processing sites . . . shall
include, to the maximum extent practicable, [vicinity
properties.]” § 7912(e)(1) (emphasis added). Although this
seems to indicate that inclusion is part and parcel of
9
designation, subsection (e)(2) directs the Secretary to “include
[vicinity property] as part of a processing site designated
under” section 7912, suggesting, El Paso insists, that
designation has been completed and that inclusion amounts to
a new activity. § 7912(e)(2) (emphasis added). In this regard,
El Paso emphasizes the canon that when Congress uses
different tenses in different statutory provisions, those
differences should be given effect. Second, El Paso observes
that the Secretary’s authority to designate sites expired one
year from UMTRCA’s effective date. Therefore, the company
argues, any action taken after that date may not be considered
“designation.” Finally, El Paso points out that section 7912(d)
refers to “designations made” together with “priorities
established.” Since priorities were undoubtedly established
only in the first year, the company urges us to read
“designations made” as referring just to first-year activities.
El Paso’s reading ignores critical features of the statute.
To begin with, section 7911(6) defines “processing site” as
both the mill site and the vicinity property. That a vicinity
property is part of a processing site, that section 7912(e)(2)
appears in section 7912, which is titled “processing site
designations,” and that section 7912(d) refers to the entire
section rather than to particular subsections, all suggest that
Congress intended to create a single program, the entirety of
which is unreviewable. In addition, we disagree that the
difference in tenses carries the significance that El Paso
suggests. Read together, subsections (e)(1) and (e)(2)
establish a relationship between inclusion and designation—
the former being an element of the latter—and subsection
(e)(2) establishes that although the Secretary was generally
subject to a one year time limit, Congress carved out an
exception for situations where designation of all qualified
properties during that time frame would be impractical.
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UMTRCA’s legislative history reinforces this
interpretation. A House Committee report used the word
“designation” to refer to the inclusion of vicinity properties
under section 7912(e)(2): “the committee does recognize that
designation of all structures and buildings ‘in the vicinity’ of a
processing site may not be practicable within this timeframe
and allows some flexibility. The committee expects the DOE
to act expeditiously on these designations as well.” H.R. Rep.
95-1480, pt. 2, at 36 (emphasis added). To be sure, as El Paso
points out, the same passage notes that “[t]he Bill does not
authorize designation or the establishment of priorities after
the one year deadline.” Id. But El Paso takes the statement out
of context. The sentence regarding vicinity properties
immediately follows the sentence regarding the time limit,
suggesting that Congress viewed subsection (e)(2) as an
exception to the one-year rule rather than as a separate
program.
On its face and in light of this legislative history,
UMTRCA unambiguously created a single designation
program that the Secretary was required to complete within
one year except with regard to vicinity properties for which
doing so would have been impractical. “Inclusion,” as
evidenced by its use in both sections 7912(e)(1) and (e)(2), is
a subcategory of “designation,” not a separate activity.
UMTRCA is thus not “reasonably susceptible to divergent
interpretation.” Kucana, 130 S.Ct. at 839. The statute
unambiguously provides that the decision to include a vicinity
property as part of a designated processing site pursuant to
subsection (e)(2) is a “designation[] made.” Accordingly, we
hold that section 7912(d) overcomes the presumption of
reviewability and bars judicial review of actions taken
pursuant to subsection (e)(2) just as it does of actions taken in
the first year pursuant to subsection (e)(1) and section
7912(a).
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In the alternative, El Paso argues that even if section
7912(d) precludes review of subsection (e)(2) decisions to
include additional vicinity properties, the action in this case
may nonetheless proceed because it involved a designation
not made rather than a “designation made.” But we agree with
the district court that this distinction is of no consequence.
“Designations made” must encompass all decisions regarding
designation, as any other reading would eviscerate the bar on
judicial review. Because El Paso has given us no reason why
anyone would challenge a designation, which after all triggers
substantial federal cost-sharing for remediation and imposes
no liability on private parties beyond that which exists under
other statutes, reading section 7912(d) to bar review only of
affirmative designations would render the provision
meaningless.
III.
Finally, we address two concerns raised at oral argument
by counsel for the Navajo Nation. First, he urged us to
employ the canon of statutory interpretation directing courts
to liberally construe statutes in favor of Native Americans.
Recording of Oral Arg. at 15:48–16:10; Montana v. Blackfeet
Tribe of Indians, 471 U.S. 759, 766 (1985). This canon,
however, has force only where a statute is ambiguous, id.;
Muscogee (Creek) Nation v. Hodel, 851 F.2d 1439, 1444–45
(D.C. Cir. 1988), and as we have explained, section 7912(d),
read in light of UMTRCA’s other provisions, is unambiguous.
In addition, even were section 7912(d) ambiguous, the
presumption applies only to statutes “passed for the benefit of
dependent Indian tribes.” Alaska Pac. Fisheries Co. v. United
States, 248 U.S. 78, 89 (1918) (interpreting the scope of land
included in a reservation created by congressional act); see
also San Manuel Indian Bingo & Casino v. NLRB, 475 F.3d
1306, 1312 (D.C. Cir. 2007) (noting that “[w]e have found no
case in which the Supreme Court applied this principle of pro-
12
Indian construction when resolving the ambiguity in a statute
of general application.”). Here, UMTRCA’s statement of
purpose reveals that Congress passed the statute to protect
public health in general rather than tribal health in particular.
See § 7901(b) (“The purposes of this chapter are to . . .
minimize or eliminate radiation health hazards to the
public[.]”).
Second, counsel pointed to the 1985 Cooperative
Agreement, a contract between DOE and the Navajo Nation
entered into pursuant to section 7915. Although the bulk of
the agreement deals with the remediation process, one
provision does direct DOE to “identify vicinity properties
associated with the Tuba City site,” pursuant to section
7912(e). According to counsel, this provision is independently
enforceable and thus a separate basis for liability. But we are
skeptical about this not only because the agreement
establishes procedures for alternative dispute resolution that
were not, as far as the record indicates, followed in this case,
but also because allowing review of the decision pursuant to
the statutory agreement would eviscerate section 7912(d)’s
bar on judicial review of section 7912(e)(2) designations. In
any event, we need not settle the issue because the amended
complaint nowhere raises a claim based on the Cooperative
Agreement. Rather, it alleges only direct violations of sections
7912 and 7921. To be sure, El Paso now argues that DOE’s
failure to comply with the agreement is “independently
actionable under the APA as agency action unlawfully
withheld or unreasonably delayed,” Appellant’s Br. 51–52,
but parties may not raise a claim for the first time on appeal,
United States v. British Amer. Tobacco (Invs.) Ltd., 387 F.3d
884, 888 (D.C. Cir. 2004).
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Because this action falls squarely within UMTRCA’s bar
on judicial review, we affirm the district court’s dismissal of
El Paso’s sections 7912 and 7921 claims.
So ordered.