El Paso Natural Gas Company v. United States

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 23, 2013 Decided April 4, 2014

No. 12-5156

EL PASO NATURAL GAS COMPANY,
APPELLANT

NAVAJO NATION,
APPELLANT

v.

UNITED STATES OF AMERICA, ET AL.,
APPELLEES

Consolidated with 12-5157

Appeals from the United States District Court
for the District of Columbia
(No. 1:07-cv-00905)

Christopher J. Neumann argued the cause for appellant
El Paso Natural Gas Company. With him on the briefs were
Troy A. Eid and Jerry Stouck.

Paul E. Frye argued the cause for appellant Navajo
Nation. With him on the briefs was David A. Taylor.
 2

Michael T. Gray, U.S. Department of Justice, argued the
cause and filed the brief for federal appellees.

Before: BROWN, Circuit Judge, and EDWARDS and
SILBERMAN, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge
EDWARDS.

TABLE OF CONTENTS

INTRODUCTION

SUMMARY
RCRA Claims Relating to the Dump
The District Court’s Dismissal of Appellants’ RCRA Claims as to the
Dump “With Prejudice”
RCRA Claims Relating to the Highway 160 Site
The Government’s Contingent RCRA Counterclaim
The Tribe’s Mill Tailings Act Claims
The Tribe’s Remaining Statutory Claims
The Tribe’s Breach of Trust Claim
I. BACKGROUND
A. The Mill
B. The Highway 160 Site
C. The Dump
II. ANALYSIS
A. RCRA Claims as to the Dump
1. CERCLA § 104 Authority
2. Frey’s “Objective Indicator” Limitation
3. Temporal Limitation to “Challenges”
4. When a Claim Qualifies as a “Challenge”
 3

5. The District Court’s Dismissal “With Prejudice”
B. RCRA Claims as to the Highway 160 Site
C. The Government’s Contingent RCRA Counterclaim
D. Mill Tailings Act
E. The Indian Dump Cleanup Act and the Indian Agricultural Act
1. Private Right of Action
2. APA
F. Breach of Trust
1. Governing Principles
a. Trust Claims under the Indian Tucker Act
b. Circuit Precedent
2. The Tribe’s Arguments
a. 25 U.S.C. § 640d-9(a)
b. The Indian Dump Cleanup Act, the Indian
Agricultural Act, and the Mill Tailings Act
c. Other Statutes
III. CONCLUSION

EDWARDS, Senior Circuit Judge: This is a weighty case,
involving numerous claims concerning environmental hazards
at three sites on Navajo land near Tuba City, Arizona. The
locations in dispute are (1) the Tuba City Uranium Processing
Mill Site (“Mill”), which was the site of a Cold War mining
operation that left behind a radioactive byproduct known as
mill tailings; (2) the Tuba City Open Dump (“Dump”), a
federal waste facility located on both Hopi and Navajo land
that was operated by the United States Bureau of Indian
Affairs (“BIA”) until 1997; and (3) the Highway 160 Dump
Site (“Highway 160 Site”), which is situated near the Mill and
has also been used as a dump.
 4

The action giving rise to this appeal was initiated in 2007
by Appellant El Paso Natural Gas Company (“El Paso”), the
successor-in-interest to the corporation that mined uranium at
the Mill. El Paso filed a complaint in District Court against
the United States and various federal agencies and officials
raising claims under two statutes: the Uranium Mill Tailings
Radiation Control Act of 1978 (“Mill Tailings Act”), 42
U.S.C. §§ 7901-7942, and the Solid Waste Disposal Act,
which is commonly referred to as the Resource Conservation
and Recovery Act of 1976 (“RCRA”), 42 U.S.C. §§ 6901-
6992k. Appellant Navajo Nation (“Tribe” or “Nation”)
intervened and asserted parallel claims under the Mill Tailings
Act and RCRA, as well as additional claims against the
Government.

In 2009, the District Court dismissed El Paso’s Mill
Tailings Act claim without discovery and certified its ruling
for interlocutory appeal. El Paso Natural Gas Co. v. United
States (El Paso I), 605 F. Supp. 2d 224 (D.D.C. 2009). This
court affirmed the judgment of the District Court. El Paso
Natural Gas Co. v. United States (El Paso II), 632 F.3d 1272
(D.C. Cir. 2011).

The District Court then dismissed the balance of
Appellants’ claims in two memorandum opinions. The trial
court first dismissed all of the Tribe’s claims, except those
arising under RCRA. El Paso Natural Gas Co. v. United
States (El Paso III), 774 F. Supp. 2d 40 (D.D.C. 2011). The
trial court next dismissed all of Appellants’ RCRA claims
relating to the Dump for want of jurisdiction due to an
administrative settlement between the BIA and the United
States Environmental Protection Agency (“EPA”) that was
formalized three years after the start of litigation. The District
Court also dismissed the RCRA claims relating to the
Highway 160 Site as moot. El Paso Natural Gas Co. v.
 5

United States (El Paso IV), 847 F. Supp. 2d 111 (D.D.C.
2012). An order accompanying the decision denied a motion
for discovery and dismissed the RCRA claims regarding the
Dump and the Highway 160 Site with prejudice. These
consolidated appeals followed.

Given the number of statutes, claims, and locations at
issue, we have summarized below the issues on appeal and
our holdings with respect to each question before the court.

SUMMARY

RCRA Claims Relating to the Dump. The District Court
dismissed these claims after EPA and the BIA entered into
administrative settlement in 2010 under § 104 of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (“CERCLA”), 42 U.S.C. §§ 9601-9675.
The District Court held that this agreement triggered the
jurisdictional bar in CERCLA § 113(h), which forecloses
courts from hearing “challenges to removal or remedial action
selected under [CERCLA § 104].” El Paso IV, 847 F. Supp.
2d at 116-23 (citing 42 U.S.C. § 9613(h)). Challenging this
ruling on four fronts, Appellants argue (1) that the
Government lacked CERCLA § 104 authority because the
waste at the Dump was naturally occurring; (2) that the
Administrative Settlement cannot trigger § 113(h) because the
settlement lacks an objective indicator of when, if ever,
remediation will occur; (3) that their RCRA claims cannot be
“challenges” under § 113(h) because they were filed before
the CERCLA response action; and (4) that their claims are
also not “challenges” because the enforcement of 40 C.F.R.
Part 258 landfill regulations will neither delay nor affect the
CERCLA response action. In light of Appellants’ own
pleadings and the clear, if troubling, sweep of § 113(h), we
 6

are obliged to affirm the dismissal of the RCRA claims
related to the Dump.

The District Court’s Dismissal of Appellants’ RCRA
Claims as to the Dump “With Prejudice.” Appellants argue
that, even if their RCRA claims must be dismissed pursuant to
CERCLA § 113(h), the dismissal should have been without
prejudice. We agree. We therefore reverse the dismissal “with
prejudice” of Appellants’ RCRA claims that relate to the
Dump and remand with instructions to the District Court to
enter judgment against Appellants “without prejudice.”

RCRA Claims Relating to the Highway 160 Site. The
District Court dismissed the Tribe’s RCRA claim as moot
because Congress authorized and appropriated funds for a
cleanup at the site in 2009, and because the Tribe assumed
responsibility for the cleanup and agreed to a release of
liability. El Paso IV, 847 F. Supp. 2d at 123-24. It then
concluded that El Paso did not have standing to pursue a
RCRA claim independent of the Tribe. Id. at 124. Appellants
argue that the scope of the waiver is much narrower than the
District Court thought and does not reach groundwater
remediation, which could be the relief obtained under RCRA.
We agree with the Tribe that its RCRA claims at the Highway
160 Site are not moot. We therefore vacate the District
Court’s dismissal of Appellants’ RCRA claims as to the
Highway 160 Site and remand the case so that these claims
can be considered on the merits. Because we conclude that the
Tribe’s RCRA claims at the Highway 160 Site are not moot,
we need not consider whether El Paso has standing.

The Government’s Contingent RCRA Counterclaim.
The Government filed a counterclaim against El Paso under
RCRA. The District Court dismissed the counterclaim without
prejudice. El Paso argues that the dismissal should have been
 7

with prejudice. We disagree and affirm the judgment of the
District Court.

The Tribe’s Mill Tailings Act Claims. The Tribe brought
two claims under the Mill Tailings Act and its associated EPA
regulations. See 42 U.S.C. §§ 7901-7942; 40 C.F.R. Part 192.
The District Court granted the Government’s Rule 12(b)(1)
motion to dismiss because it thought the Mill Tailings Act
precludes judicial review of claims that fall within the scope
of the mandatory waiver in § 7915(a)(1). El Paso III, 774 F.
Supp. 2d at 52. This conclusion was incorrect because the
Mill Tailings Act does not preclude review of all claims under
the Administrative Procedure Act (“APA”). We nevertheless
affirm the dismissal on other grounds. The terms of the
waiver executed by the Tribe effectively foreclose its Third
Claim for Relief. And the Tribe’s Fourth Claim for Relief
fails to state a cause of action under the APA.

The Tribe’s Remaining Statutory Claims. The Tribe also
sued under the American Indian Agricultural Resource
Management Act (“Indian Agricultural Act”), 25 U.S.C.
§§ 3701-3746, and the Indian Lands Open Dump Cleanup Act
of 1994 (“Indian Dump Cleanup Act”), 25 U.S.C. §§ 3901-
3908. We analyze these claims together because they present
the same questions on appeal: namely, whether the statutes
create private rights of action, and, if not, whether the Nation
has adequately alleged an APA claim based on the
Government’s failure to act. With respect to the Indian
Agricultural Act, the Tribe conceded in its reply brief that the
Act contains no private right to sue; we also find that the
Tribe failed to plead a claim that is cognizable under the
APA. We reach the same conclusions with respect to the
Nation’s claim under the Indian Dump Cleanup Act. The
statute creates agency obligations, but it does not focus on the
rights of protected parties. Therefore, no right of action can be
 8

implied in the Act. And the Tribe’s claim raises no viable
action under the APA because it does not allege that the
Government failed to act with respect to some discrete duty
that was legally required.

The Tribe’s Breach of Trust Claim. The Tribe cites
several statutes in support of its claim that the Government
breached fiduciary duties owed to the Nation. In particular,
the Tribe relies on 25 U.S.C. § 640d-9(a), which provides that
designated lands “shall be held in trust by the United States
exclusively for the Navajo Tribe and as part of the Navajo
Reservation.” The Tribe argues that this statute, in tandem
with the Government’s actual control of the trust corpus (i.e.,
the land at the Mill, Dump, and Highway 160 Site), creates a
trust relationship and a concomitant cause of action for breach
of trust. We disagree. Indeed, the Supreme Court, in a
decision not cited by the parties, rejected the very argument
now pressed by the Tribe. We also conclude that the Tribe’s
argument is contrary to the principles articulated by the
Supreme Court in Indian Tucker Act cases. Moreover, we are
unconvinced by the Tribe’s remaining argument that other
statutes – including many of the ones that form the basis for
its other claims – establish a viable action here for breach of
trust. Therefore, we hold that none of the cited statutes creates
a cause of action for breach of trust.

I. BACKGROUND

The three locations that are the subject of this suit are
located on or near the border between the Hopi and Navajo
reservations, near Tuba City, Arizona.
 9

A. The Mill

From 1956 to 1966, Rare Metals Corporation, the
predecessor-in-interest to Appellant El Paso, mined
approximately 800,000 tons of uranium at the Mill under a
contract pursuant to a federal government nuclear weapons
program. Uranium mining produces a sandy, radioactive
byproduct called “tailings.” Until the 1970s, there was little
recognition that tailings were hazardous. They were often left
at mining sites, thus creating a serious threat to public health.

In 1978, Congress sought to address the tailings problem
by enacting the Mill Tailings Act. 42 U.S.C. § 7901(b)(2).
The Act provides for a program to assess and remediate
inactive mills sites. It establishes the United States
Department of Energy (“DOE”) as the administering agency
and requires it to designate inactive uranium mill sites for
remediation “at or near” twenty locations enumerated in
§ 7912(a), including Tuba City, Arizona. Consistent with
these provisions, the Mill was designated as a “processing
site” to be remediated. The Act further directs EPA to
promulgate standards to govern the cleanups at the designated
tailings sites, id. § 7918, which EPA did a few years later, see
40 C.F.R. Part 192.

In 1985, before any remedial action at the Mill began, the
DOE entered into a cooperative agreement with the Navajo
and Hopi Tribes, on whose land the Mill sits. A cooperative
agreement is a compulsory component of the Mill Tailings
Act, which directs that the “Secretary shall, to the greatest
extent practicable, enter into such agreements.” 42 U.S.C.
§ 7915(a). The Act requires that cooperative agreements
contain liability waivers, id. § 7915(a)(1), pursuant to which
the Navajo and Hopi Tribes consented in 1985 to release the
United States of “any liability or claim . . . arising out of the
 10

performance of any remedial action on such millsite, vicinity
property or depository site.” Coop. Agreement Between the
United States Dep’t of Energy, the Navajo Tribe of Indians &
the Hopi Tribe of Indians (“Coop. Agreement”) at 17-18,
reprinted in Joint Appendix (“J.A.”) 214-15.

A remedial action plan was then formulated. See App’x B
to Coop. Agreement, reprinted in J.A. 237-70. The plan,
which was agreed to by the Navajo and Hopi, included a
stabilization-in-place strategy, whereby 1.4 million cubic
yards of tailings were collected in a pile and then covered in a
disposal cell onsite. The cover of the cell comprised a “radon
barrier” consisting of compacted sand, topped by a layer of
bedding, and then a layer of rock (riprap, to be precise)
designed to protect the radon barrier from erosion. Id. at 43,
reprinted in J.A. 262. The surface cleanup began in 1988 and
was completed by 1990. A disposal cell spanning fifty acres
now stands on the site. In addition, since 2002 DOE has
actively treated contaminated groundwater by pumping it
from the aquifer, treating it, and then returning it to the
aquifer.

The Tribe now alleges that this remediation is ineffective.
According to its allegations, the disposal cell allows rain
water to flow directly through the aggregated tailings. This is
so because the tailings cover, which consists of sand and
small rocks, is permeable. And because the tailings sit atop a
thin geologic layer, the contaminated rainwater drains through
the tailings straight into the Navajo aquifer, a source of
drinking water for nearby residents. There is a suggestion in
the record that covers like the one purporting to shield the
tailings at the Mill are “100 to 1000 times” more permeable
than design targets. The Tribe contends that, in light of this
situation, the Mill does not meet the regulatory requirement
that it be effective for at least 200 years.
 11

B. The Highway 160 Site

The Highway 160 Site (so-called because it abuts the
eponymous highway) lies just to the north of the Mill. The
site comprises sixteen acres of Navajo land. Given its
proximity to the Mill, it is probably unsurprising that the
Highway 160 Site is also contaminated by radioactive debris.

The Navajo Nation Environmental Protection Agency
(“Navajo EPA”) discovered the contamination in 2003.
Follow-up surveys and investigations in 2006 and 2007 linked
the onsite radioactive waste to the Mill and revealed that the
site had debris buried below ground. All told, there were
sixteen distinct areas of disturbance in need of soil
remediation. In addition, there were drums and containers of
solid and hazardous wastes that had been left on the ground.
In 2007, in view of the dumping at the site, El Paso brought
its RCRA citizen claim, as did the Nation in 2010 in its
intervenor complaint.

Meanwhile, in 2009, the discoveries at the Highway 160
Site led Congress to authorize and fund a cleanup. Congress
included in the Energy and Water Development and Related
Agencies Appropriations Act of 2009, Pub. L. No. 111-8,
Div. C, 123 Stat. 524, 601-30, a $5 million appropriation to
the DOE to perform “remedial actions . . . at real property in
the vicinity of the [Mill].” 123 Stat. at 617-18; see also 42
U.S.C. § 7922. The language of the appropriation makes clear
that Congress intended the remediation to be done under the
framework of the Mill Tailings Act.

In 2010 and 2011, the Tribe and the DOE adopted two
amendments to a prior cooperative agreement (different than
the one governing at the Mill). Amendment 021, reprinted in
 12

J.A. 325-29; Amendment 026, reprinted in J.A. 420-35. Most
of the $5 million in appropriated funds was given to the
Navajo EPA to remediate the Highway 160 Site. And in
Amendment 026, the Nation agreed to the following waiver:

Pursuant to 42 U.S.C. 7915, as this amendment involves
remedial action, the Navajo Nation (A) releases the
United States of any liability or claim thereof by such
tribe or person concerning such remedial action, and (B)
holds the United States harmless against any claim
arising out of the performance of any such remedial
action.

Amendment 026 at 2, reprinted in J.A. 421.

The remediation selected was to excavate the
contaminated material and transport it offsite. This work had
commenced in July 2011, although the Navajo EPA was
unsure whether the funding would be sufficient to complete
the task and had not determined if the groundwater
underneath the site was contaminated. See Decl. of Cassandra
Bloedel ¶¶ 3-5, reprinted J.A. 436-37.

In 2011, the Government moved to dismiss as moot the
Nation’s RCRA based on the congressional appropriation, the
liability waiver, and the then-ongoing remedial work. The
motion also asserted that El Paso lacked standing to bring a
RCRA claim on its own at the site. The District Court agreed
and dismissed the claims. El Paso IV, 847 F. Supp. 2d at 123-
24.

C. The Dump

The allegations concerning the Dump paint a disturbing
picture of the Government’s inaction in the face of clear
 13

violations of environmental regulations – a picture that only
gains texture and detail from a review of the record.

The Dump is a thirty-acre landfill to the southwest of the
Mill. It sits mostly on Hopi land, although two acres belong to
the Navajo Tribe. It is a federal facility and was operated by
the BIA for approximately fifty years without a RCRA
permit. Before the BIA ceased operations at the Dump in
1997, trenches were excavated and filled with trash, and then
were periodically covered with soil. The site comprises two
cells where waste was disposed: the “old cell” is a ten-acre
plot that received waste until about 1980, and the “new cell”
is a separate twenty acres that received waste thereafter.

During its operation, the Dump received all manner of
waste. Locals left their ordinary household trash. The
Government disposed of hazardous waste at the site,
including medical wastes deposited by the Department of
Health and Human Services and the Indian Health Service.
And beginning in 1968, the United States discarded residual
radioactive materials and waste from the Mill into the Dump.

Unsurprisingly, the Dump site is seriously contaminated.
Testing has revealed that the shallow groundwater in the area
contains various constituents – including arsenic, selenium,
and uranium, to name just a few – that do not meet federal
drinking water standards. And wells installed in 2007 to
monitor the contamination plume beneath the Dump have
confirmed contaminant levels above federally allowable
levels.

There is a history of governmental inaction at the Dump.
In 1993, prompted by bad conditions such as daily fires at the
Dump, local residents served the BIA with a notice of intent
to sue for open dumping in violation of RCRA and its landfill
 14

regulations in 40 C.F.R. Part 258. The BIA attempted to close
the Dump before the October 9, 1997 regulatory deadline
under Part 258, but failed to do so. This was in part due to the
discovery of ground water contamination, which meant that
the dump no longer qualified for closure as a small exempt
landfill under 40 C.F.R. § 258.1(f) and was instead subject to
more stringent requirements for closure. In February 2000,
EPA issued a notice of potential landfill closure violation but
never brought an enforcement action. Meanwhile, the BIA has
repeatedly promised to close the Dump but has gotten only as
far as conducting preliminary studies – to date, thirty-two of
them.

In September 2010 – three years after El Paso initiated
this lawsuit – the BIA and EPA entered into an
Administrative Settlement Agreement and Order on Consent
for Remedial Investigation/Feasibility Study (“Administrative
Settlement”), reprinted in J.A. 333-88. EPA invoked its
authority under CERCLA § 104, delegated from the
President, “to act, consistent with the national contingency
plan, to remove or arrange for the removal of” a hazardous
substance, pollutant, or contaminant that has been released (or
threatens to be released) into the environment. 42 U.S.C.
§ 9604(a)(1). The settlement incorporates into its terms a
more detailed plan of action, entitled the Remedial
Investigation and Feasibility Study Work Plan (“Workplan”).
See Workplan, reprinted in part in J.A. 391-419, available in
full as attachment to Pls.’ Mem. in Opp’n to Mot. to Dismiss,
El Paso v. United States (No. 1:07-cv-00905-RJL), ECF No.
73-6.

Under the terms of the Administrative Settlement, the
BIA agreed to conduct with EPA oversight a remedial
investigation and feasibility study. The purpose of the study is
to “determine the nature and extent of contamination and any
 15

threat to the public health, welfare, or the environment,” and
“to identify and evaluate remedial alternatives to prevent,
mitigate or otherwise respond to or remedy any release or
threatened release of hazardous substances, pollutants, or
contaminants at or from the Site.” Admin. Settlement ¶ 9,
reprinted in J.A. 337-38.

Soon after the settlement was executed, the Government
defendants filed a Rule 12(b)(1) motion to dismiss. The
motion asserted that, under CERCLA § 113(h), the Settlement
Agreement divested the District Court of jurisdiction to hear
Appellants’ RCRA claims related to the Dump.

II. ANALYSIS

We review de novo the District Court’s dismissal of
claims for want of subject matter jurisdiction under Rule
12(b)(1) or for failure to state a claim under Rule 12(b)(6).
Kim v. United States, 632 F.3d 713, 715 (D.C. Cir. 2011).
With respect to each claim, we first consider the Rule
12(b)(1) grounds for dismissal, if any, as subject matter
jurisdiction presents a threshold question. Id. (citing Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998)).

A. RCRA Claims as to the Dump

Congress enacted RCRA in response to the “rising tide in
scrap, discarded, and waste materials.” Am. Mining Cong. v.
EPA, 824 F.2d 1177, 1179 (D.C. Cir. 1987) (internal
quotations omitted). “Primary in RCRA, Congress
empowered the EPA to regulate solid and hazardous waste.”
Am. Petroleum Inst. v. EPA, 683 F.3d 382, 384 (D.C. Cir.
2012). Citizen suits may be brought against any person,
including the United States and any other governmental
instrumentality or agency alleged to be in violation of RCRA.
 16

See 42 U.S.C. § 6972(a); see also, e.g., Backcountry Against
Dumps v. EPA, 100 F.3d 147 (D.C. Cir. 1996).

Appellants each brought RCRA citizen-suit claims
against the United States and federal agencies relating to the
Dump and the Highway 160 Site. El Paso Compl. ¶¶ 94-101,
reprinted in J.A. 76-78; Navajo Compl. ¶¶ 103-12, reprinted
in J.A. 114-17; see also 42 U.S.C. § 6972(a). The District
Court dismissed the RCRA claims with respect to the Dump
because, it concluded, CERCLA § 113(h) divested it of
jurisdiction.

CERCLA provides for the prompt and efficient cleanup
of hazardous substances. See United States v. City & Cnty. of
Denver, 100 F.3d 1509, 1511 (10th Cir. 1996). EPA has
authority under CERCLA to “command government agencies
and private parties to clean up hazardous waste sites by or at
the expense of the parties responsible for the contamination.”
Gen. Elec. Co. v. EPA, 360 F.3d 188, 189 (D.C. Cir. 2004)
(internal quotation marks omitted). In particular, CERCLA
§ 104 “authorizes EPA, whenever any hazardous substance is
released or is threatened to be released into the environment,
to undertake two types of response actions: (1) to remove or
arrange for the removal of the hazardous substance; and (2) to
provide for remedial actions relating to the release or
‘substantial threat of release’ of the substance.” Id. (quoting
42 U.S.C. § 9604). CERCLA’s definition of “hazardous
substance” draws on RCRA’s standards. 42 U.S.C.
§ 9601(14)(C); see also Meghrig v. KFC W., Inc., 516 U.S.
479, 485 (1996).

CERCLA § 113(h) insulates EPA removal and remedial
actions taken pursuant to CERCLA § 104 from judicial
review. Section 113(h) states in pertinent part that:
 17

No Federal court shall have jurisdiction under Federal
law . . . to review any challenges to removal or remedial
action selected under section 9604 of this title . . . in any
action except one of the following [exceptions] . . . .

42 U.S.C. § 9613(h) (emphasis added). The statute then
enumerates five exceptions, none of which apply here. As this
court has previously stated, § 113(h) “effectuates a blunt
withdrawal of federal jurisdiction.” Oil, Chem. & Atomic
Workers Int’l Union v. Richardson, 214 F.3d 1379, 1382
(D.C. Cir. 2000) (internal quotation marks omitted). And
indeed it does, so long as its predicates are met.

The District Court determined that the September 2010
Administrative Settlement entered into between EPA and the
BIA provided for “removal” actions under CERCLA § 104.
El Paso IV, 847 F. Supp. 2d at 117. And the District Court
reasoned that, because Appellants sought an injunction
ordering cleanup activities, the RCRA claims were barred as
“challenges” to the removal actions for which CERLCA
§ 113(h) deprives courts of jurisdiction. Id. at 117-18.

Appellants do not contest that EPA and BIA’s activities
at the Dump constitute “removal” actions, nor could they in
view of the statutory definition of the term. The definition of
“removal” broadly includes “actions as may be necessary to
monitor, assess, and evaluate the release or threat of release of
hazardous substances.” 42 U.S.C. § 9601(23). The definition
also encompasses “action taken under section 9604(b) of this
title,” id., and this incorporated subsection includes studies
and investigations that EPA “may deem necessary or
appropriate” whenever EPA is authorized to act under
CERCLA 104(a) or whenever EPA “has reason to believe
that a release has occurred or is about to occur,” id. § 9604(b).
Moreover “removal” also includes related “enforcement
 18

activities.” Id. § 9601(25). Thus, the remedial investigation
and feasibility study that is a part of the Administrative
Settlement falls within the compass of a “removal action”
because the agencies have committed to investigate the
“nature and extent of contamination” from hazardous
substances at the Dump. Admin. Settlement ¶¶ 1, 9; accord,
e.g., Razore v. Tulalip Tribes of Wash., 66 F.3d 236, 238-39
(9th Cir. 1995) (concluding that performing such a study is a
“removal action”).

Notwithstanding the foregoing, Appellants contend that
§ 113(h) should not bar their RCRA claims in this case. First,
Appellants argue the Government has failed to establish that it
acted within the scope of its CERCLA § 104 authority, which
cannot be invoked to clean up substances that are naturally
occurring. Second, Appellants contend the Administrative
Settlement and incorporated Workplan cannot serve as the
predicate for the application of § 113(h) because the
settlement lacks an objective indicator of when remediation
will occur. Third, Appellants argue that claims that predate
the Government’s invocation of CERCLA, like their own,
cannot be “challenges” to CERCLA response actions within
the meaning of § 113(h). And fourth, the RCRA claims are
also not “challenges,” in Appellants’ view, because enforcing
the requirements in Part 258 will not delay or interfere with
the CERCLA response action. Br. for Appellant El Paso
Natural Gas Co. (“El Paso Br.”) at 21-55; see also Br. for
Appellant Navajo Nation (“Navajo Br.”) at 54 n.12 (joining
El Paso’s arguments).

1. CERCLA § 104 Authority

EPA’s authority under CERCLA § 104 is limited by
subsection (a)(3), which provides in relevant part that the
“President [and EPA, by delegation,] shall not provide for a
 19

removal or remedial action under this section in response to a
release or threat of release . . . of a naturally occurring
substance in its unaltered form, or altered solely through
naturally occurring processes or phenomena, from a location
where it is naturally found.” 42 U.S.C. § 9604(a)(3)(A).
Citing this provision, Appellants argue that “the factual record
shows that any hazardous substances at the [Dump] most
likely are naturally occurring, making CERCLA
inapplicable.” El Paso Br. at 29; see also id. at 25-26 (quoting
snippets from the Workplan that, in the aggregate, stand for
little more than the straightforward proposition that some
substances at the Dump are naturally occurring). Appellants
further contend that, insofar as a material jurisdictional fact is
in dispute – i.e., whether the substances are “naturally
occurring” – they are entitled to limited jurisdictional
discovery. Id. at 30 & n.5 (citing Phoenix Consulting, Inc. v.
Republic of Angola, 216 F.3d 36 (D.C. Cir. 2000)).

The chief impediments to Appellants’ arguments are their
own pleadings. El Paso’s complaint repeatedly alleges that
non-naturally occurring hazardous substances were released at
the Dump. E.g., El Paso Compl. ¶¶ 13, 17, 19-22, 79-87,
92-94, 105, 108, reprinted in J.A. 88-116. El Paso would have
us ignore its own allegations, but factual allegations in
operative pleadings are judicial admissions of fact. See
Official Comm. of Unsecured Creditors of Color Tile, Inc. v.
Coopers & Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003)
(“[T]he allegations in the [operative complaint] are judicial
admissions by which [the pleader] was bound throughout the
course of the proceeding.” (internal quotation marks and
alterations omitted)); Schott Motorcycle Supply, Inc. v. Am.
Honda Motor Co., Inc., 976 F.2d 58, 61 (1st Cir. 1992) (“A
party’s assertion of fact in a pleading is a judicial admission
by which it normally is bound throughout the course of the
proceeding.” (internal quotation marks omitted)). The same
 20

goes for the Tribe, see, e.g., Navajo Compl. ¶ 20, reprinted in
J.A. 146-47, which has also forfeited this argument by stating
in its brief that it “understands that non-naturally occurring
contaminants are present in the . . . Dump,” Navajo Br. at 54
n.12.

It is of course true that El Paso was entitled to plead in
the alternative and, to the extent it did so, to not be bound in
one claim by an allegation pled only as to its alternative
claim. See FED. R. CIV. P. 8(d)(2); Schott Motorcycle Supply,
976 F.2d at 61-62 (citing 5 WRIGHT & MILLER, FEDERAL
PRACTICE AND PROCEDURE § 1282). But that is not what
happened. El Paso incorporated all of the allegations cited
above in its RCRA claim. El Paso Compl. ¶ 103, reprinted in
J.A. 114. And certain allegations were plainly made in view
of the RCRA claim. Id. ¶ 13, reprinted in J.A. 88-89 (alleging
that RCRA was violated due to the Government’s storage and
disposal of, inter alia, “medical waste”).

Appellants’ allegations foreclose their arguing that the
substances at the Dump are only “naturally occurring.” For
the purposes of this proceeding, their pleadings operate as a
judicial admission that man-made hazardous waste exists at
the Dump, a fact that is fatal to their argument under
CERCLA § 104(a)(3). In light of Appellants’ admissions,
limited jurisdictional discovery was not required. And we do
not consider El Paso’s argument, raised for the first time in its
reply brief, that EPA lacked § 104 authority in light of the
definition of “release” in CERCLA § 101(22), which excludes
any “release of source, byproduct, or special nuclear material
from any processing site designated under” the Mill Tailings
Act. El Paso Reply at 10-11 (quoting 42 U.S.C. § 9601(22)).

We have no occasion to address, and we certainly do not
endorse, the Government’s argument that a suit questioning
 21

EPA’s authority to invoke CERCLA is itself a “challenge”
barred by CERCLA § 113(h). Br. for the Fed. Defs. (“Gov’t
Br.”) at 38-39. The absolutism of the Government’s position
is striking. At oral argument, in response to a hypothetical,
counsel for the Government stated that the § 113(h) bar would
apply even if EPA said that it was invoking § 104 as to a site
that it knew to be contaminated with substances that were
exclusively naturally occurring. Later avenues for challenge
exist, counsel suggested, such as in a defense to a cost-
recovery action or by bringing a CERCLA citizen suit once
the response action is completed. When this position is
coupled with the Government’s additional claim that EPA is
not constrained by any time limits on when it must finish
ongoing CERCLA actions, the scope of § 113(h) is stretched
well beyond what Congress contemplated when the statutory
bar was enacted.

In Frey v. EPA, 403 F.3d 828 (7th Cir. 2005), the
Seventh Circuit raised similar concerns about the
Government’s construction of § 113(h):

[W]hat if EPA decides to study the contamination for an
indeterminate period of time without taking any remedial
action? Counsel had no response when asked whether the
statute precludes review if EPA claims that it will take
action, after further study, at some point before the sun
becomes a red giant and melts the earth. We then asked
counsel whether a reviewing court could . . . compel
agency action unlawfully withheld or unreasonably
delayed, if EPA dragged its feet for decades. Counsel
informed us that a court could not act under these
circumstances because CERCLA’s rules governing
judicial review override the APA. . . . We can only
conclude from this exchange that EPA considers itself
protected from review under CERCLA § 113(h) as long
 22

as it has any notion that it might, some day, take further
unspecified action with respect to a particular site.

Id. at 834.

The Government’s position is dubious, to say the least: If
EPA’s ipse dixit is enough to trigger § 113(h), and if EPA can
also do nothing for as long as it pleases, then CERCLA
§ 113(h) becomes a license for EPA to do as it will for as long
as it would like, all the while free of judicial review. And
where federal facilities are involved, this carte blanche has the
potential to be used by the Government to avoid liability. We
doubt this is what Congress intended in CERCLA § 113(h). In
this case, however, having found that Appellants are in fact
challenging CERCLA action, it is enough for this court to join
the Seventh Circuit in highlighting the problem as one that is
ripe for congressional consideration.

2. Frey’s “Objective Indicator” Limitation

Relying on Frey, Appellants next argue that § 113(h)
prohibits suits only when the Government provides an
“objective indicator that allows for external evaluation, with
reasonable target . . . completion dates, of the required work
for the site.” El Paso Br. at 31 (quoting Frey, 403 F.3d at
835). This line of argument is perplexing, both because the
issue raised in Frey is not the same issue that we face in this
case and because the limitation it announces would not apply
to the facts before us.

Frey addresses the question whether a CERCLA citizen
suit under 42 U.S.C. § 9659 may proceed under CERCLA
§ 113(h)(4), which is one of the five enumerated exceptions to
the subsection’s general ban on challenges to CERCLA
actions. 403 F.3d at 829. That case concerned a “remedial
 23

action,” not a “removal,” a distinction that matters under
§ 113(h)(4). Id. at 835-36. EPA had concluded one phase of
its remedial action (excavating polychlorinated biphenyls);
however, the agency had not “selected” a remedy for the next
phase, which concerned groundwater or sediment
contamination. Id. at 833. The court rejected EPA’s argument
that § 113(h) barred CERCLA citizen suits indefinitely while
EPA considered its next remedial action. Id. at 834. Unlike in
Frey, there is no doubt that in this case the actions taken
pursuant to the Administrative Settlement, including the
incorporated Workplan, constitute a “removal” that has been
“selected” under § 113(h). In any case, it would be impossible
to apply § 113(h)(4), which Frey relied upon for this
distinction, because Appellants did not bring a CERCLA
citizen suit. Appellants’ argument thus amounts to a non
sequitur.

The Frey argument also fails on its own terms as the
Administrative Settlement in this case would pass the
“objective indicator” test articulated in Frey. In Frey, EPA’s
CERCLA efforts had come to a standstill, although the
agency continued to claim that it would – someday – take
remedial action. EPA then attempted to use § 113(h)(4),
which blocks citizen suits while “a remedial action is to be
undertaken at the site,” as a fig leaf to cover its indefinite
delay. This situation is not before us; under the terms of the
Administrative Settlement, the BIA is required to conduct the
remedial investigation and feasibility study under a specific
schedule. Admin. Settlement ¶¶ 11(t), 31, reprinted in J.A.
343, 349-50. The incorporated Workplan schedule provides
specific deadlines for the subtasks involved in finishing the
study. Table 5, Conceptual Project Timeline (attached to
Workplan), reprinted in J.A. 417. To be sure, these deadlines
can be modified, see Admin. Settlement ¶ 33, and it appears
that some have been modified. But this possibility does not
 24

render the Administrative Settlement devoid of objective
indicators for completion. Indeed, the agreement has
benchmarks that would enable a court to determine if the
agencies were unduly delaying their removal action and
distorting § 113(h) into an “open-ended prohibition on a
citizen suit.” Frey, 403 F.3d at 834.

3. Temporal Limitation to “Challenges”

Section 113(h) applies only to “challenges to removal or
remedial action,” 42 U.S.C. § 9613(h) (emphasis added), and
Appellants offer two arguments why their RCRA claims are
not “challenges.” The first is a temporal argument: Appellants
contend that the term “challenges” encompasses only suits
filed after the initiation of a CERCLA response action. (We
consider the second argument in Section II.A.4, infra.) They
reason that the jurisdictional bar in § 113(h) does not apply
here because their RCRA claims predate the initiation of the
CERCLA removal action. El Paso Br. at 35. In support,
Appellants invoke the purported plain meaning of the statute,
congressional intent, and the canon that statutory provisions
should, if possible, be construed in harmony. Id. at 36-46. We
are unconvinced.

The meaning of § 113(h), though not plain, supports the
Government’s position that the § 113(h) bar applies to
Appellants’ RCRA claims at the Dump. The operative text
states that “[n]o Federal court shall have jurisdiction . . . to
review any challenges to removal or remedial action selected
under section 9604 . . . in any action except one of the
following” five exceptions. 42 U.S.C. § 9613(h) (emphasis
added). Appellants assert that “[o]ne cannot issue a challenge
against something that does not exist,” and, thus, by
construing “Appellants’ RCRA claims as a challenge to
EPA’s later-initiated response action, the [District Court]
 25

disregarded the ordinary meaning of a ‘challenge.’” El Paso
Br. at 36. The statute, however, refers to “any challenges,”
which favors a broad reading of the term to include challenges
that were so when filed and later-developing challenges. In
other words, so long as Appellants’ RCRA claims are live,
they are meant to challenge governmental action (or inaction)
that is contrary to RCRA, which includes such action taken
(or forgone) after Appellants’ claims were first advanced to
initiate this law suit.

We find no basis in the legislative history to doubt our
construction of the text. Appellants cite a House Report that
states that the “purpose of this provision is to ensure that there
will be no delays associated with a legal challenge of the
particular removal or remedial action selected under section
104.” H.R. REP. NO. 99-253, pt. 5, at 25-26 (1985). But this
reference suffers from the same basic ambiguity as the
statutory text, i.e., whether a challenge must be intended as
such from the start or whether a claim can become a challenge
to a later-filed CERCLA removal or remedial action. If
anything, this report underscores the importance to Congress
of minimizing litigation-related delays to CERCLA cleanups,
and Appellants have offered no persuasive reason why
Congress would want to treat differently the two types of
litigation-related delays (i.e., delay caused by preexisting
claims and delay caused by claims filed after CERCLA
response actions). Delay is delay, and both the natural reading
of § 113(h) and the apparent purpose of the subsection
support our construing “challenges” without regard to the
strict chronology of when a particular claim is filed.

Nor are we convinced by Appellants’ assertion that the
District Court’s interpretation of § 113(h) failed to harmonize
§ 113(h) with RCRA. Our task is to determine what Congress
intended when it enacted § 113(h), and we cannot, under the
 26

guise of harmonizing statutes, ignore convincing indicia of
congressional intent. Congress drafted § 113(h) just two years
after enacting the RCRA citizen suit provision, and yet it did
not except RCRA from the sweep of § 113(h). See River Vill.
W. LLC v. Peoples Gas Light & Coke Co., 618 F. Supp. 2d
847, 852-53 (N.D. Ill. 2008). And it is clear that Congress
knew how to preserve RCRA rights when it so desired. See 42
U.S.C. § 9620(i) (“Nothing in this section shall affect or
impair the obligation of [the Government] to comply with any
requirement of [RCRA].” (emphasis added)). But it did not.
And like many other circuits, we are satisfied that Congress
did not intend to afford RCRA citizen suits special protection
from the preemptive sweep of § 113(h). See, e.g., Cannon v.
Gates, 538 F.3d 1328, 1332-36 (10th Cir. 2008); OSI, Inc. v.
United States, 525 F.3d 1294, 1297-99 (11th Cir. 2008);
APWU v. Potter, 343 F.3d 619, 624 (2d Cir. 2003); Clinton
Cnty. Comm’rs v. EPA, 116 F.3d 1018, 1026-28 (3d Cir.
1997); McClellan Ecological Seepage Situation v. Perry, 47
F.3d 325, 328-30 (9th Cir. 1995); Ark. Peace Ctr. v. Ark.
Dep’t of Pollution Control & Ecology, 999 F.2d 1212, 1217-
18 (8th Cir. 1993).

4. When a Claim Qualifies as a “Challenge”

Appellants also suggest that their claims are not
“challenges” under § 113(h) because requiring the BIA to
comply with RCRA’s Part 258 landfill regulations at the
Dump will not delay or affect any CERCLA cleanup at the
site. El Paso Br. at 47. In other words, Appellants aim to
answer this important question: Under what circumstances
does a claim qualify as a “challenge” under § 113(h)?

Other circuits that have addressed this question have
applied a “broad standard for what constitutes a challenge.”
Cannon, 538 F.3d at 1336. These courts have found that
 27

lawsuits qualify as “challenges” under § 113(h) when they
would create “the kind of interference with the cleanup plan
that Congress sought to avoid or delay by the enactment of
Section 113(h).” McClellan, 47 F.3d at 330; see also, e.g.,
Cannon, 538 F.3d at 1335 (“[A] suit challenges a removal
action if it interferes with the implementation of a CERCLA
remedy because the relief requested will impact the removal
action selected.” (emphasis added) (alteration, internal
quotation marks, and citation omitted)); Broward Gardens
Tenants Ass’n v. EPA, 311 F.3d 1066, 1072 (11th Cir. 2002)
(“To determine whether a suit interferes with, and thus
challenges, a cleanup, courts look to see if the relief requested
will impact the remedial action selected.” (emphasis added)).

We believe the approach taken by these circuits is
consistent with the operative language and purpose of
§ 113(h). We therefore hold that a claim is a § 113(h)
“challenge” if it will interfere with a “removal” or a “remedial
action.” In some situations, the nature and degree of
interference are sufficiently direct and clear that it will be
obvious that the suit is a “challenge” barred by § 113(h). See,
e.g., Boarhead Corp. v. Erickson, 923 F.2d 1011, 1012 (3d
Cir. 1991) (concluding that § 113(h) barred jurisdiction over a
request to stay a CERCLA cleanup until EPA conducted a
review of the site as required under the National Historic
Preservation Act). In other situations, it may be necessary to
assess the nexus between the nature of the suit and the
CERCLA cleanup: the more closely related, the clearer it will
be that the suit is a “challenge.” See McClellan, 47 F.3d at
330. As the Ninth Circuit explained,

every action that increases the cost of a cleanup or diverts
resources or personnel from it does not thereby become a
“challenge” to the cleanup. The enforcement of minimum
wage requirements, for example, might increase the cost
 28

of a cleanup and even divert personnel from cleanup
duties without becoming a challenge to the cleanup. [The
plaintiff’s RCRA] lawsuit, however, is far more directly
related to the goals of the cleanup itself than is the
hypothetical minimum wage action. [The plaintiff], for
all practical purposes, seeks to improve on the CERCLA
cleanup as embodied in the [agreement].

Id. (emphasis added); see also Gen. Elec., 360 F.3d at 194
(concluding that pre-enforcement judicial review of a facial
constitutional challenge to CERCLA was permissible under
§ 113(h), notwithstanding the concern that the challenge, if
successful, “would have the effect of hindering or delaying
EPA’s cleanup of hazardous waste sites” (emphasis added)).

Under this framework, there can be little doubt that
Appellants’ RCRA claims are “challenges.” This conclusion
is evident from Appellants’ pleadings. See El Paso Compl.
¶ H, reprinted in J.A. 118 (seeking “a permanent injunction
ordering that Defendants perform cleanup activities”); Navajo
Compl. ¶¶ I.3, I.6, reprinted in J.A. 174 (seeking an
injunction requiring Defendant to “perform clean-up
activities” and to “provide financial and technical assistance
to the Navajo Nation to carry out the activities necessary to
effect clean closure” of the Dump). The requested relief in
this case goes beyond interfering with an ongoing CERCLA
removal action. The injunction that Appellants seek would
require specific cleanup activities that would threaten to
obviate the very point of the remedial investigation and
feasibility study. As noted above, the point of the study is to
analyze the extent of contamination and to evaluate different
remedial alternatives so that the Government will be able to
choose the “remedial action” that is “appropriate under the
circumstances presented” and that will “assure[] protection of
human health and the environment.” 42 U.S.C. § 9621(d); see
 29

also id. § 9601(23) (A “removal” includes “actions as may be
necessary to monitor, assess, and evaluate the release or threat
of release of hazardous substances.”).

Nor does our conclusion change if we assume that
Appellants’ RCRA claims are limited to enforcing “the
ground water monitoring, interim measures, corrective action
and other requirements of Part 258.” El Paso Br. at 47. These
regulations require groundwater sampling, analysis, and, if
contaminants are detected above allowable standards, an
assessment and implementation of a “corrective action” – all
on a specified timetable. 40 C.F.R. §§ 258.53(e), 258.53(i)
258.54(c), 258.55(g), 258.57(a)-(b). Claims based on these
regulations invariably would interfere with the remedial
investigation and feasibility study and, thus, the CERCLA
removal. The relief requested by Appellants would alter how
EPA monitors and assesses the extent of contamination, see
42 U.S.C. § 9601(23), and, more importantly, would threaten
to preempt EPA’s ability to choose the best remedial action
among a panoply of remedial alternatives that have been
analyzed in a completed remedial investigation and feasibility
study according to criteria articulated in CERCLA, not Part
258. Compare 40 C.F.R. § 300.430(e)(9)(iii) (listing nine
criteria for analyzing remedial alternatives as part of the
feasibility study), with 40 C.F.R. § 258.57(b) (listing factors
for selecting corrective remedies under RCRA’s Part 258).

That the RCRA claims are “directly related to the goals
of the cleanup itself” bolsters our conclusion that they are
“challenges” under § 113(h). McClellan, 47 F.3d at 330. One
of the four express purposes of the Administrative Settlement
is to “ensure compliance with the groundwater monitoring
requirements of 40 C.F.R. Part 258.” Admin. Settlement
¶ 9(d), reprinted in J.A. 338. It is true that CERCLA § 121(d)
directs compliance with RCRA standards only with respect to
 30

the “remedial action” selected (not as to a “removal”
selected), 42 U.S.C. § 9621(d)(2)(A); however, the Workplan
structures the remedial investigation and feasibility study in
light of EPA’s eventual obligation under the statute. See
Workplan at 36 (“Section 121(d) of CERCLA requires
attainment of federal, state and Tribal [requirements].”);
Table 2, “Applicable or Relevant and Appropriate
Requirements” (attached to Workplan) at 5 (listing 40 C.F.R.
§ 258.58 as an applicable requirement and summarizing the
requirement as follows: “Municipal landfill groundwater
monitoring, provides substantive requirements for
groundwater detection monitoring, assessment monitoring,
remedy selection and implementation of corrective actions”).
In other words, because the remedial action must comply with
RCRA, it is reasonable to assume that EPA must conduct its
remedial investigation and feasibility study to evaluate
remediation which will comply with these obligations. The
remedial investigation and feasibility study is thus guided,
albeit indirectly, by the very regulations that Appellants seek
to enforce judicially.

Appellants cite United States v. Colorado, 990 F.2d 1565
(10th Cir. 1993), for the proposition that bringing a RCRA
enforcement claim does not constitute a “challenge” under
§ 113(h). However, Colorado is readily distinguishable
because that case involved a state’s attempt to enforce its
hazardous waste requirements. Id. at 1576 (citing 42 U.S.C.
§ 9614(a), providing that “[n]othing in [CERCLA] shall be
construed or interpreted as preempting any State from
imposing any additional liability or requirements with respect
to the release of hazardous substances within such State”); see
also Ark. Peace Ctr., 999 F.2d at 1217 (noting that in
Colorado “the court relied on 42 U.S.C. § 9614(a)” which is
not implicated here).
 31

5. The District Court’s Dismissal With Prejudice

Finally, Appellants argue that, even if their RCRA claims
must be dismissed pursuant to CERCLA § 113(h), the
dismissal should have been without prejudice. We agree.
Although § 113(h) effects a withdrawal of jurisdiction
whenever its predicates are met, the statutory provision –
covering only the “Timing of review” – does not permanently
withdraw jurisdiction over otherwise viable RCRA claims and
claims arising under one of the exceptions to § 113(h).

The Government acknowledges that after a remedial
investigation and feasibility study is completed, “EPA could
determine that no further remediation work is necessary.”
Gov’t Br. at 47. We can find nothing in the statute that
obviously bars a renewed RCRA claim after a removal or
remedial action has concluded. The Government simply
states, in conclusory terms, that RCRA claims arising after a
removal or remedial action has concluded should be barred by
CERCLA § 113(h) as impermissible “challenges” to the
removal or remedial actions. This seems contrary to the
statute because once a removal or remedial action has
concluded there would be no “removal” or “remedial action”
contemplated by the Government that a renewed suit would
“challenge.” 42 U.S.C. § 9613(h).

If the Government were to choose not to pursue remedial
action, Appellants concededly might elect to bring a claim
under CERCLA’s citizen suit provision. 42 U.S.C.
§ 9613(h)(4) (exempting CERCLA citizen suits from the
subsection’s jurisdictional bar), § 9621(d)(2) (requiring
CERCLA remedial action to meet RCRA standards that are
“legally applicable”), § 9659(a)(2) (authorizing citizen suits if
EPA fails to perform a non-discretionary duty); see also
Gov’t Br. at 35-36. That a cause of action under CERCLA’s
 32

citizen suit provision may be available, however, does not
mean that this cause of action must be the exclusive vehicle
for seeking additional remedial action at the Dump.

In any event, we need not decide whether renewed
RCRA claims may be brought after a removal or remedial
action has concluded. As we have explained, the Appellants’
position on this point is far from untenable, but this is a
difficult issue that admits of no easy answer. Therefore, we
agree that Appellants’ current RCRA claims should be
dismissed without prejudice because any question regarding
the applicability of CERCLA § 113(h) to renewed RCRA
claims is unripe for review at this time. We leave resolution of
this question for another day. The District Court’s dismissal
with prejudice is therefore reversed.

B. RCRA Claims as to the Highway 160 Site

The RCRA claims at the Highway 160 Site remain for
our consideration. The District Court ruled that the Nation’s
RCRA claim was mooted by the congressional appropriation
for site remediation and by the Tribe’s agreeing to the liability
release in Amendment 026. El Paso IV, 847 F. Supp. 2d at
123-24. This was error. The congressional appropriation and
the agreements between the Nation and the DOE are
insufficient to moot the Nation’s RCRA claim.

The mootness limitation is constitutional:

Because the exercise of judicial power under Article III
depends upon the existence of a case or controversy, a
federal court may not render advisory opinions or decide
questions that do not affect the rights of parties properly
before it. See North Carolina v. Rice, 404 U.S. 244, 246
(1971) (per curiam). A court’s judgment must resolve “a
 33

real and substantial controversy admitting of specific
relief through a decree of a conclusive character, as
distinguished from an opinion advising what the law
would be upon a hypothetical state of facts.” Id. This
means that an actual controversy must exist at all stages
of judicial review, not merely when the complaint is
filed. See Roe v. Wade, 410 U.S. 113, 125 (1973).

EDWARDS, ELLIOTT & LEVY, FEDERAL STANDARDS OF
REVIEW 134 (2d ed. 2013). And a court must “refrain from
deciding [a case that was live when filed] if ‘events have so
transpired that the decision will neither presently affect the
parties’ rights nor have a more-than-speculative chance of
affecting them in the future.’” Clarke v. United States, 915
F.2d 699, 701 (D.C. Cir. 1990) (en banc) (quoting
Transwestern Pipeline Co. v. FERC, 897 F.2d 570, 575 (D.C.
Cir. 1990)).

The congressional appropriation for site remediation
certainly did not render the Tribe’s claim moot. The
appropriation merely offers some support for relief efforts,
but it does not guarantee remedial results, nor by its terms
does it bar the Tribe’s present action. Likewise, the Tribe’s
execution of the liability release in Amendment 026 did not
moot its current claim as to the Highway 160 Site. The release
in Amendment 026 does not sweep nearly so broadly as the
District Court thought.

The District Court relied on clause (A) of the waiver but
omitted key phrasing. In relevant part, the waiver states:
“Pursuant to 42 U.S.C. 7915, as this amendment involves
remedial action, the Navajo Nation (A) releases the United
States of any liability or claim thereof by such tribe or person
concerning such remedial action . . . .” Amendment 026 at 2,
reprinted in J.A. 421 (emphasis added). The first clause refers
 34

to the Mill Tailings Act, and the phrasing of the second clause
establishes a link between “remedial action” and the Act. This
language makes clear that the Tribe and DOE contemplated in
this release a specific type of remedial action, namely that
taken under the authority of the Mill Tailings Act.

Simply put: the agreement does not contemplate a release
of liability “concerning any remedial action,” it only releases
liability “concerning such remedial action.” And the Tribe’s
RCRA claim is not one “concerning such remedial action.”
Among other things, the Tribe seeks to enforce RCRA
regulations that require the implementation of a “ground
water monitoring” program. Navajo Compl. ¶ 76, reprinted in
J.A. 162-63. Ground water remediation “concerns such
remedial action” only insofar as it would take place at the
same location, albeit on different strata. As the Tribe
explained, the remedial action selected at the Highway 160
Site “only concerns soil,” Navajo Br. at 58, which the
Government does not dispute in its brief. Indeed, it would
make no sense to say that the remediation covered
groundwater, as it was unclear at the time whether the
groundwater beneath the site was contaminated. See Bloedel
Decl. ¶ 5.

The bottom line is that the Tribe still has an injury caused
by the Government that can be remediated by requiring
compliance with RCRA’s groundwater compliance
regulations. And no events have transpired to moot its claim.

The District Court’s additional rationale concerning the
broad purpose of the cooperative agreement is unconvincing.
It credited the “broad statement of purpose” in Amendment
026 “to complete remediation of the Highway 160 Site.” El
Paso IV, 847 F. Supp. 2d at 123. But this quote is but an
isolated statement from a document which otherwise makes
 35

clear that the remedial action would entail excavating the
contaminated materials from the soil, and not some all-
encompassing remedial action. See Attach. A to Amendment
026 at 5, reprinted in J.A. 429. More fundamentally, under
the District Court’s reading, the phrase “concerning such
remedial action” means the same thing as “concerning the
Highway 160 Site” or “concerning any remedial action ever.”
This is not what the waiver says.

Even if the disputed waiver were ambiguous on the
question whether it covers the Tribe’s RCRA groundwater
claims – which it is not – we would resolve the ambiguity in
the Tribe’s favor. See Ramah Navajo Chapter v. Salazar, 644
F.3d 1054, 1062 (10th Cir. 2011), aff’d, 132 S. Ct. 2181
(2012) (agreements dealing with Indian affairs have been
construed liberally in favor of establishing Indian rights).

Because we conclude that the Tribe’s RCRA claims at
the Highway 160 Site are not moot, we need not consider
whether El Paso has standing. Mountain States Legal Found.
v. Glickman, 92 F.3d 1228, 1232 (D.C. Cir. 1996) (“For each
claim, if constitutional and prudential standing can be shown
for at least one plaintiff, we need not consider the standing of
the other plaintiffs to raise that claim.”). We therefore reverse
the District Court’s dismissal of Appellants’ RCRA claims as
to the Highway 160 Site and remand the case so that these
claims can be considered on the merits.

C. The Government’s Contingent RCRA Counterclaim

The Government filed a counterclaim against El Paso
under RCRA pursuant to the citizen endangerment provision,
42 U.S.C. § 6972(a)(1)(B). Am. Countercl., reprinted in J.A.
176. Before the District Court, the Government characterized
its claim as “a protective reciprocal counterclaim,” and
 36

explained that the claim “ensures that there is a vehicle for the
Court to equitably apportion cleanup responsibility for the
properties among responsible parties, including [El Paso],
should [El Paso] succeed on its RCRA claims.” United States’
Mem. in Opp’n to Mot. to Dismiss Am. Countercl. at 2, 14-
15, El Paso v. United States (No. 1:07-cv-00905-RJL), ECF
No. 59.

El Paso moved to dismiss the counterclaim, and the
District Court denied the motion in a minute order. Later,
however, in light of the dismissal of Appellants’ RCRA
claims, the District Court dismissed the Government’s
counterclaim without prejudice. El Paso argues that the
Government’s counterclaim should have been dismissed with
prejudice. Even though El Paso prevailed on the
counterclaim, it is within its rights to “appeal a dismissal
without prejudice on the grounds that it wants one with
prejudice.” See Sea-Land Serv., Inc. v. DOT, 137 F.3d 640,
647 n.4 (D.C. Cir. 1998) (citation omitted). El Paso provides
two grounds why the dismissal should have been with
prejudice. First, it contends that the Government is not
authorized to bring a RCRA “citizen suit” under 42 U.S.C.
§ 6972(a)(1)(B). El Paso Br. at 57-61. Second, El Paso argues
that the claim is inadequately pled. Id. at 61-62.

We start with the language of the statute. Subsection
(a)(1) of the citizen suit provision states:

Except as provided in subsection (b) or (c) of this section,
any person may commence a civil action on his own
behalf . . . (B) against any person, including the United
States and any other governmental instrumentality or
agency . . . who has contributed or who is contributing to
the past or present handling, storage, treatment,
transportation, or disposal of any solid or hazardous
 37

waste which may present an imminent and substantial
endangerment to health or the environment.

42 U.S.C. § 6972(a)(1) (emphasis added). RCRA defines
“person” to include not just individuals but also, inter alia,
“each department, agency, and instrumentality of the United
States.” Id. § 6903(15). The question for us is whether the
Government is a “person” who “may commence a civil
action.” Or, more precisely, whether the federal defendants –
who, until now, we have referred to as, collectively, the
“Government” – are “persons” entitled to bring suit.

The plain import of the operative text of § 6972(a)(1)(B)
and § 6903(15) settles the issue. The express definition of
“person” includes the counterclaimants. And subsection
(a)(1)(B) only confirms this application: the “including”
clause in § 6972(a)(1)(B) indicates that “person” as used in
the subsection encompasses the United States. Id.
§ 6972(a)(1)(B) (“against any person, including the United
States and any other governmental instrumentality or agency”
(emphasis added)). We read the first use of “person” in pari
materia with the second mention of the term, which includes
governmental agencies.

El Paso’s arguments are unavailing in the face of this
clear statutory command. It contends that allowing
governmental entities to bring citizen suits runs contrary to
the statutory scheme that separately authorizes EPA to bring
suits on behalf of the United States. 42 U.S.C. § 6973(a). This
is a fair point, but EPA is not a counterclaimant and nothing
in § 6973 expressly limits alternative action taken under the
citizen suit provision. Permitting federal agencies to sue under
§ 6972(a)(1)(B) will not undermine EPA’s primary
enforcement authority because a citizen suit, including one
brought by a federal agency, cannot proceed until 90 days
 38

after EPA is given notice of the endangerment. Id.
§ 6972(b)(2)(A); see also id. § 6972(d) (giving EPA right to
intervene).

El Paso also cites legislative history to suggest that the
amendment in 1992 that added federal agencies to RCRA’s
definition of “person” was for a limited purpose: to make
clear that RCRA waived sovereign immunity for citizen suits
against federal facilities. El Paso Br. at 60 (citing H.R. REP.
NO. 102-111, at 5-6 (1991)). The inference El Paso would
have us draw is that the amendment is therefore not intended
for other purposes, such as allowing federal agencies to bring
RCRA citizen suits. But the evidence is mixed or, if anything,
more supportive of the Government’s interpretation. See S.
REP. NO. 102-67, at 5 (1991) (“[T]he bill amends the
definition of person in section 1004(15) of the Solid Waste
Disposal Act [i.e., RCRA] so that all of the provisions of that
Act apply in the same manner and to the same extent to both
Federal and non-Federal persons.”). With the statute as clear
as it is, El Paso’s arguments on appeal are insufficient for us
to forgo giving effect to the plain import of the provision. The
counterclaim was valid under RCRA.

We are also unconvinced by El Paso’s second argument,
that the counterclaim is “legally deficient because it contains
only conditional allegations that do not actually allege an
endangerment.” El Paso Br. at 61. El Paso observes that the
counterclaim alleges that “[t]o the extent that either [El Paso]
or the Navajo Nation establishes, as alleged in their
complaints, that solid or hazardous waste [at one of the
relevant sites] may present an imminent and substantial
endangerment to health or the environment, then [El Paso] is
liable under [RCRA] section 7002(a)(1)(B), 42 U.S.C.
6972(a)(1)(B).” Id. (quoting Am. Countercl. ¶ 24). In El
Paso’s view, this is insufficient under Rule 8(a)(2) because
 39

the counterclaim does not show that the Government is
entitled to relief.

If El Paso conceded that its own RCRA claim was not
plausible, then perhaps it would have a point. But it does not.
Its argument is therefore meritless. Counterclaims made
contingent on the outcome of the principal action are
permissible. See Springs v. First Nat’l Bank of Cut Bank, 835
F.2d 1293, 1296 (9th Cir. 1988) (“[A] counterclaim is not
barred because recovery will depend on the outcome of the
main action.”); see also WRIGHT & MILLER, FED. PRACTICE &
PROCEDURE § 1411 (“A counterclaim will not be denied
treatment as a compulsory counterclaim solely because
recovery on it depends on the outcome of the main action,
however. This approach seems sound when the counterclaim
is based on pre-action events and only the right to relief
depends upon the outcome of the main action.”).

We therefore affirm the District Court’s dismissal of the
Government’s counterclaim without prejudice.

D. Mill Tailings Act

Only claims brought by the Nation remain. Of these, we
turn next to the two claims that allege violations at the Mill of
the Mill Tailings Act and related regulations. 42 U.S.C.
§§ 7901-7942; 40 C.F.R. Part 192. The Third Claim for Relief
contends that the DOE failed to comply with EPA regulations
requiring the Mill’s remediation to “meet certain design
criteria and environmental standards,” including the
requirement that the remediation be designed to “be effective
. . . for at least 200 years.” Navajo Compl. ¶¶ 90-93 (citing 40
C.F.R. § 192.02(a)). And the Fourth Claim for Relief alleges
that the DOE “failed to complete remedial action at the Mill
before September 30, 1998,” which is the deadline for such
 40

action under the statute. Id. ¶¶ 96-98 (citing 42 U.S.C.
§ 7912(a)(1)); see also 42 U.S.C. § 7922(a)(1). It further
alleges that DOE failed to “take appropriate action to restore
groundwater at and near the Mill.” Navajo Compl. ¶ 98.

The Government argues that these claims are barred for
want of subject matter jurisdiction because the Mill Tailings
Act precludes judicial review. Gov’t Br. at 71-75.
Alternatively, the Government says the Tribe has failed to
state a claim for relief. Id. at 73 n.7, 76-77. The District Court
agreed that it lacked jurisdiction. El Paso III, 774 F. Supp. 2d
at 45-47. For the reasons that follow, we conclude that the
District Court had jurisdiction but that dismissal was
nevertheless appropriate because the two counts fail to state
viable claims for relief. See EEOC v. St. Francis Xavier
Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997)
(“Although the district court erroneously dismissed the action
pursuant to Rule 12(b)(1), we could nonetheless affirm the
dismissal if dismissal were otherwise proper based on failure
to state a claim under Federal Rule of Civil Procedure
12(b)(6).”).

We can make quick work of the Government’s
suggestion that the District Court lacked jurisdiction. The
Tribe does not argue that the Mill Tailings Act affords a
private right of action; rather, it stakes its claim on a cause of
action under the APA. See 5 U.S.C. § 702. Furthermore, as
the Supreme Court has made clear, a plaintiff’s claim under
the APA is not barred by another statute if the other statute
does not cover the type of grievance the plaintiff seeks to
assert under the APA. Match-E-Be-Nash-She-Wish Band of
Pottawatomi v. Patchak, 132 S. Ct. 2199, 2205 & n.3 (2012).

The APA expressly does not afford a cause of action “to
the extent that . . . statutes preclude judicial review.” 5 U.S.C.
 41

§ 701(a)(1). And the Government contends that the Mill
Tailings Act “precludes judicial review.” We disagree. We
can find nothing in the Mill Tailings Act that precludes the
Tribe’s APA claims here. 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). Overcoming this presumption is no easy
task; indeed, “where substantial doubt about the congressional
intent exists, the general presumption favoring judicial review
of administrative action is controlling.” Id. at 672 n.3.

The Government argues that the Mill Tailing Act
impliedly precluded the District Court from entertaining the
Tribe’s APA claims because § 7915(a)(1) states that, if the
Secretary of Energy enters into a cooperative agreement with
a tribe, the tribe “shall execute a waiver (A) releasing the
United States of any liability or claim thereof by such tribe or
person concerning such remedial action and (B) holding the
United States harmless against any claim arising out of the
performance of any such remedial action.” 42 U.S.C.
§ 7915(a)(1) (emphasis added); Gov’t Br. at 72. This
argument makes little sense because there is nothing in
§ 7915(a)(1) to indicate that it bars all APA claims. Section
7915(a)(1) does not by its terms preclude anything; rather, it
says that, upon entering into a remedial action agreement
under the Mill Tailing Act, the Tribe must sign a waiver
agreement that might serve to limit or bar future suits. Section
7915(a)(1) does not categorically bar all claims under the
APA, nor does it address the scope of permissible actions
under the APA. The scope of any waiver that the Tribe signs
will be relevant in determining whether it may pursue an
action under the APA, but that is a different matter entirely.
 42

Furthermore, Congress did explicitly bar review as to
some DOE action under the Mill Tailings Act, 42 U.S.C.
§ 7912(d). This implies that it did not intend judicial review to
be foreclosed as to other DOE actions, like those challenged
here. The Government’s arguments have not removed the
“substantial doubt” that Congress meant to foreclose judicial
review in these circumstances. Bowen, 476 U.S. at 672 n.3.
As a result, the presumption of reviewability controls, and the
District Court had jurisdiction.

Nonetheless, we agree with the Government that the two
counts must be dismissed under Rule 12(b)(6). See St. Francis
Xavier, 117 F.3d at 624. To begin with, the particular terms of
the waiver in the cooperative agreement here control the
disposition of the Third Claim for Relief. See Coop.
Agreement at 17-18, reprinted in J.A. 214-15. The waiver
releases the United States of “any liability or claim . . . arising
out of the performance of any remedial action.” Id. (emphasis
added). In the Third Claim for Relief, the Tribe asserts that
the Government failed to meet certain design criteria and
environmental standards. These are clearly matters arising out
of the “performance” of the “remedial action,” which is
covered by the waiver. See id. at 4, reprinted in J.A. 200
(defining “remedial action” as “the assessment, design,
construction, renovation, reclamation, decommissioning, and
decontamination activities of DOE” (emphasis added)).

In the Fourth Claim for Relief, the Tribe alleges that the
DOE “failed to complete remedial action at the Mill before
September 30, 1998.” Navajo Compl. ¶ 98. This alleged
failure to act does not arise out of “performance” under the
waiver, so it is not directly covered by the waiver. The claim
is nonetheless flawed because it does not assert any discrete
duties which the DOE failed to take and which it was obliged
to take with respect to remedial action. Norton v. S. Utah
 43

Wilderness Alliance (SUWA), 542 U.S. 55, 64 (2004) (“[A]
claim under § 706(1) [of the APA] can proceed only where a
plaintiff asserts that an agency failed to take a discrete agency
action that it is required to take.”). A plaintiff may not rely on
§ 706(1) of the APA to advance “broad programmatic
attack[s].” Id.; see also Section II.E, infra (amplifying the
holding in SUWA).

In sum, we conclude that the Mill Tailings Act does not
preclude judicial review of the Tribe’s claims. But we affirm
on alternative grounds. The terms of the waiver executed by
the Tribe plainly bars the Third Claim for Relief. And the
Fourth Claim for Relief fails to state a claim since it alleges
no discrete duty to act incumbent on the DOE.

E. The Indian Dump Cleanup Act and the Indian
Agricultural Act

The Tribe pursued two other statutory claims. Its Second
Claim for Relief alleges that § 3712(b) of the Indian
Agricultural Act imposes a duty on the Secretary of the
Interior to comply with tribal law, and that the Secretary has
violated this duty by violating various incorporated tribal
laws. Navajo Compl. ¶¶ 84-88, reprinted in J.A. 165-66. And
its Ninth Claim for Relief alleges that the Indian Health
Service “failed and refused to consult with the Navajo
Nation” and thereby violated duties imposed by § 3904 of the
Indian Dump Cleanup Act. Id. ¶ 120, reprinted in J.A. 170.
Although this claim mentions only the Dump, id. ¶ 118, we
assume that, broadly construed, it reaches the Highway 160
Site as well.

We evaluate both claims inasmuch as they apply to sites
other than the Dump (where CERCLA § 113(h) has divested
the court of jurisdiction). And like the District Court, we
 44

consider the claims together as they raise issues that fit neatly
in the same analytical framework. For both, the real dispute is
whether the Tribe has a viable cause of action, which, in turn,
depends on two issues: (1) whether the particular statute
affords an implied private right of action, and, if not, (2)
whether the Tribe has alleged “final agency action” sufficient
to invoke APA review.

1. Private Right of Action

After contending before the District Court and in its
opening brief here that the Indian Agricultural Act creates a
private right of action, the Tribe concedes in its reply that it
does not. Navajo Reply at 9 n.5 (acknowledging that the
statutory language preserving sovereign immunity “is
inconsistent with a private right of action and the Nation no
longer asserts that [the Indian Agricultural Act] creates one”);
see also 25 U.S.C. § 3712(d).

The Tribe argues instead that Congress created a right of
action in the Indian Dump Cleanup Act. If so, it is implied.
See 25 U.S.C. §§ 3901-3908 (containing no express right of
action). The guiding principle with respect to implied rights of
action is legislative intent; the “judicial task is to interpret the
statute Congress has passed to determine whether it displays
an intent to create not just a private right but also a private
remedy.” Alexander v. Sandoval, 532 U.S. 275, 286 (2001).
To determine whether Congress intended to afford a private
remedy against the Government, we look to Cort v. Ash, 422
U.S. 66, 78 (1975), and “the long line of cases stemming”
from that decision. Tax Analysts v. Comm’r, 214 F.3d 179,
185 (D.C. Cir. 2000); see also Sandoval, 532 U.S. at 287
(reaffirming the vitality of Cort, 422 U.S. 66).
 45

The Supreme Court in Cort specified four factors to
determine whether Congress intended to provide an implied
private right of action:

(1) whether the plaintiff is one of the class for whose
benefit the statute was enacted; (2) whether some
indication exists of legislative intent, explicit or implicit,
either to create or to deny a private remedy; (3) whether
implying a private right of action is consistent with the
underlying purposes of the legislative scheme; and (4)
whether the cause of action is one traditionally relegated
to state law, such that it would be inappropriate for the
court to infer a cause of action based solely on federal
law.

Tax Analysts, 214 F.3d at 185-86 (citing Cort, 422 U.S. at
78). Applying this test, we conclude that no private right of
action can be inferred.

First, private remedies follow private rights, and we
agree with the District Court that the Act “focuses on the
regulating agency’s obligations, and not on the rights of the
protected party.” El Paso III, 774 F. Supp. 2d at 49 (citing
Sandoval, 532 U.S. at 289). We see nothing to indicate that
the statute implicitly confers a right of action. See Godwin v.
Sec’y of HUD, 356 F.3d 310, 312 (D.C. Cir. 2004). As the
Godwin court explained,

“In fact, it is difficult to understand why a court would
ever hold that Congress, in enacting a statute that creates
federal obligations, has implicitly created a private right
of action against the federal government, [as] there is
hardly ever any need for Congress to do so” given that
agency action can normally be reviewed by a district
court pursuant to its federal question jurisdiction.
 46

Id. (quoting NAACP v. Sec’y of HUD, 817 F.2d 149, 152 (1st
Cir. 1987) (Breyer, J.) (emphasis omitted)).

We hold below that the Tribe has no viable action under
the APA in this case, but that does not change our analysis
here. Indeed, if anything, the absence of an APA claim here
“only reinforces our view that the [statute] creates no implied
right of action, for it would be quite odd to hold that Congress
implicitly created a cause of action despite another statute’s
preclusion of such an action. Given Congress’s presumed
awareness of the APA’s provisions, we believe – in
accordance with the holdings of other circuits – that Congress
would make explicit any intent to create a cause of action in
these circumstances.” Id. at 312 (citations omitted).

In the absence of clear indicia of intent to the contrary,
we hold that the Indian Dump Cleanup Act does not provide
an implied right to sue.

2. APA

There being no private right of action in either statute, the
viability of the Tribe’s Second and Ninth Claims for Relief
turns on whether the Tribe has adequately pled its claims
under the APA. Both claims allege failures to act. See 5
U.S.C. § 706(1) (“The reviewing court shall . . . compel
agency action unlawfully withheld or unreasonably delayed”).

Such failures to act “are sometimes remediable under the
APA, but not always.” SUWA, 542 U.S. at 61. Drawing on the
“agency action” language in sections 702, 704 and 706(1) of
the APA, the Supreme Court made clear that to bring a
“failure to act” claim under § 706(1) of the APA, a plaintiff
must sufficiently allege “that an agency failed to take a
 47

discrete agency action that it is required to take.” SUWA, 542
U.S. at 64; see also Montanans for Multiple Use v.
Barbouletos, 568 F.3d 225, 227 (D.C. Cir. 2009). With these
two requirements in hand – that the allegedly withheld action
be (1) “legally required” and (2) “discrete” – we turn to the
Tribe’s claims and allegations.

First, with respect to the Indian Agricultural Act claim,
the Tribe argues that § 3712(a)-(b) imposes on the Secretary
of the Interior a legal obligation to take discrete agency
action. This provision states:

(a) Tribal recognition– The Secretary shall conduct all
land management activities on Indian agricultural land
. . . in accordance with all tribal laws and ordinances,
except in specific instances where such compliance
would be contrary to the trust responsibility of the United
States.

(b) Tribal laws– Unless otherwise prohibited by Federal
law, the Secretary shall comply with tribal laws and
ordinances pertaining to Indian agricultural lands,
including laws regulating the environment and historic or
cultural preservation, and laws or ordinances adopted by
the tribal government to regulate land use or other
activities under tribal jurisdiction. The Secretary shall—
...
(3) upon the request of an Indian tribe, require
appropriate Federal officials to appear in tribal
forums.

25 U.S.C. § 3712(a)-(b). The Nation argues it has stated a
viable APA claim because it “alleged that the Secretary was
not complying with the permitting requirements of the Navajo
Clean Water Act and was violating the Navajo Nation Civil
 48

Trespass Act by failing to remove hazardous wastes from the
Open Dump and the Highway 160 Dump Site.” Navajo Br. at
28; see also Navajo Compl. ¶¶ 85-88.

We think these allegations are insufficient to state a claim
for relief. The chief problem with the Tribe’s argument is that
the language above does not appear to endow the agency with
a duty to act; rather, it requires that when the agency does act,
its action must comport with tribal law. The portion of
§ 3712(b) cited by the Tribe (“the Secretary shall comply with
tribal laws”) contains only a general follow-the-law directive.
Cf. 25 U.S.C. § 3712(b)(3) (which does set forth discrete
agency action). This sort of provision flunks SUWA’s
discreteness test. As the District Court put it, the “statute
simply requires that when the agency acts, it act in
compliance with tribal law. It does not impose an affirmative
duty to act for the purpose of preventing violations of tribal
law.” El Paso III, 774 F. Supp. 2d at 50. Meanwhile,
subsection (a) applies only when the Interior Secretary
conducts “land management activities,” § 3712(a), but the
Nation has not alleged that the Interior Secretary’s failures to
act came in the context of such activities.

Furthermore, insofar as the claim is premised on the
Navajo Nation Civil Trespass Act and the Government’s
failure to remove waste from the Dump or Highway 160 Site,
we lack jurisdiction to hear it. Seeking an injunction to
remove the hazardous waste from the Dump would plainly
constitute a “challenge” under CERCLA § 113(h). And such a
request would be moot as to the Highway 160 Site because,
unlike with the Tribe’s RCRA claim, the remedial project that
was implemented there is the very thing that the Tribe says is
required under tribal law – removing the waste. See Navajo
Br. at 28. Nor can we comprehend the Tribe’s passing
reference to the BIA’s discharge of pollutants from the Mill.
 49

Id. at 45-46. The complaint suggests that the DOE – and not
the Interior Department – is in charge of the Mill and the
remedial project there. See Navajo Compl. ¶¶ 23, 25,
reprinted in J.A. 147-48. And the DOE is free of the duties
imposed on the Department of Interior under the Indian
Agricultural Act. 25 U.S.C. §§ 3703(15) (defining
“Secretary” as the Secretary of the Interior), 3712(a)-(b)
(imposing requirements on the “Secretary”).

Second, an APA claim premised on the Indian Dump
Cleanup Act also fails. In particular, the Tribe relies on 25
U.S.C. § 3904. This provision directs the Indian Health
Service to “provide financial and technical assistance to the
Indian tribal government . . . to carry out the activities
necessary to (1) close such dumps; and (2) provide for
postclosure maintenance of such dumps.” 25 U.S.C.
§ 3904(b). The Nation argues that the Indian Health Service’s
failure “to provide the mandated financial and technical
assistance” is cognizable under the APA. Navajo Br. at 32.

This claim falters because the purportedly mandatory
duty is contingent on a series of predicate acts in subsection
(a). That is, the duty to provide assistance in subsection (b)
can only be invoked “[u]pon completion of the activities
required to be performed pursuant to subsection (a).” 25
U.S.C. § 3904(b). There is no indication that the outlined
activities were in fact completed. The District Court so held,
El Paso III, 774 F. Supp. 2d at 50-51, and the Tribe did not
challenge this conclusion in its brief. What is more, the
assistance required in subsection (b) is made conditional on
the “priorities developed by the Director.” 25 U.S.C.
§ 3904(c). Because there is a predicate to imposing the duty to
provide assistance, and because the Director of the Indian
Health Service has discretion in doling out assistance, the
Nation has not pled any “legally required” duty to act. SUWA,
 50

542 U.S. at 63. As such, the dismissal of the Ninth Claim for
Relief – like that of the Second Claim for Relief – was
appropriate.

F. Breach of Trust

The final matter at issue in this case is the Tribe’s breach-
of-trust claim. With respect to all three sites, the Tribe alleged
in its Tenth Claim for Relief that the Government breached
various duties owed to it under federal common law, assorted
statutes, and the 1850 Treaty between the Tribe and the
United States. Navajo Compl. ¶¶ 121-26, reprinted in J.A.
171. The District Court dismissed the claim based in part on
its conclusion that the sources of law relied upon by the Tribe
did not create a cause of action. El Paso III, 774 F. Supp. 2d
at 52-53. We hold, for the reasons discussed below, that the
Tribe has failed to state a claim for relief because the Tribe
has not identified a substantive source of law establishing
specific fiduciary duties, a failure which is fatal to its trust
claim regardless of whether we read the claim as brought
under the APA or under a cause of action implied by the
nature of the fiduciary relationship itself.

It helps to take a step back. Because the Government is a
defendant here, the Tribe faces three threshold requirements
to stating a viable claim for relief at the pleading stage: it
must establish federal subject matter jurisdiction, a waiver of
sovereign immunity, and a cause of action. See Floyd v.
District of Columbia, 129 F.3d 152, 155 (D.C. Cir. 1997). The
first of these is simple because the Tribe’s claim turns on
questions of federal law and, as such, the District Court
properly enjoyed “arising under” jurisdiction pursuant to 28
U.S.C. § 1331. Nor is sovereign immunity in dispute. The
Government has not argued that its immunity precludes the
trust claim, Gov’t Br. at 78-87, which comes as no surprise
 51

since the second sentence of § 702 of the APA waives
sovereign immunity not just for APA claims but also, more
broadly, for claims “seeking relief other than money
damages.” 5 U.S.C. § 702; see also Chamber of Commerce of
the U.S. v. Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996) (“The
APA’s waiver of sovereign immunity applies to any suit
whether under the APA or not.”). The only threshold issue in
dispute, then, is the third requirement: whether the Tribe has
identified a viable cause of action and alleged facts sufficient
to state a plausible claim under that cause of action.

The Tribe appears to argue that its claim can be
maintained either (1) under the APA or (2) under a cause of
action inferred from the fiduciary responsibilities undertaken
by the Government. See Navajo Br. at 48, 49 n.9. On either
conception of the claim our inquiry is largely the same
because, under controlling precedent, a cause of action will be
inferred from a fiduciary relationship only where a plaintiff
can identify specific trust duties in a statute, regulation, or
treaty. And this analysis overlaps with the APA’s requirement
that a plaintiff allege “that an agency failed to take a discrete
agency action that it is required to take.” SUWA, 542 U.S. at
64.

Before addressing the Tribe’s specific arguments on
appeal, we turn to the Supreme Court’s case law concerning
Indian trust claims, and then to the law of the circuit, to
ascertain the principles that govern.

1. Governing Principles

The existence of a general trust relationship between the
Government and Indian tribes is long established. See, e.g.,
Seminole Nation v. United States, 316 U.S. 286, 296 (1942);
Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831). But this
 52

general trust relationship alone does not afford an Indian tribe
with a cause of action against the Government, as the Nation
acknowledges. Navajo Br. at 53. Something more is needed.

In decisions addressing Indian trust claims arising in the
context of the Indian Tucker Act, 28 U.S.C. § 1505, the
Supreme Court has inferred causes of action for money
damages where statutes and regulations establish a
conventional fiduciary relationship with the Government as
trustee. We start with these decisions to see when statutes and
regulations establish a conventional trust relationship and, as
a result, imply a cause of action for breach of trust. Next, we
turn to our own Indian trust law precedent, which confirms
that we apply these same principles to trust claims brought
under the APA.

a. Trust Claims under the Indian Tucker Act

The Supreme Court, in two pairs of cases, delineated
what an Indian tribe must establish to bring a breach-of-trust
claim for money damages against the Government under the
Indian Tucker Act, 28 U.S.C. § 1505. See United States v.
Navajo Nation (Navajo I), 537 U.S. 488 (2003); United States
v. White Mountain Apache Tribe, 537 U.S. 465 (2003);
United States v. Mitchell (Mitchell II), 463 U.S. 206 (1983);
United States v. Mitchell (Mitchell I), 445 U.S. 535 (1980).

Mitchell I and Mitchell II were decided in the same case,
which was brought by members of the Quinault Tribe alleging
that the Government mismanaged timber resources and
thereby breached its duty as trustee. The posture of Mitchell I
presented the question whether the Indian General Allotment
Act of 1887 (“Allotment Act”), also known as the Dawes Act,
authorized an award of money damages against the United
States for its mismanagement of forests on land allotted under
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the statute. 445 U.S. at 536. Section 5 of the Allotment Act
provided that “the United States does and will hold the land
thus allotted . . . in trust for the sole use and benefit of the
Indian to whom such allotment shall have been made.” Id. at
541 (quoting Allotment Act). But the Supreme Court
concluded that this language created only a “limited trust
relationship” that did not impose a judicially enforceable trust
duty. Id. at 542. Rather than enacting particular governmental
duties, the Court read the Allotment Act as entrusting the
management of the land to the allottees themselves. Id. at 543.
And the Court was persuaded that the “in trust” language was
not intended to impose fiduciary duties on the United States,
but to protect allottees from state taxation. Id. at 544.
Although it rejected the trust claim predicated on the
Allotment Act, the Court nevertheless allowed that other
statutes could succeed where the Allotment Act failed. Id. at
546 & n.7.

Mitchell II considered these other statutes and held that
they imposed enforceable fiduciary duties, i.e., that they
created a cause of action for breach of trust. The Court
distinguished Mitchell I, stating that “[i]n contrast to the bare
trust created by the General Allotment Act, the statutes and
regulations [here] clearly give the Federal Government full
responsibility to manage Indian resources and land for the
benefit of the Indians. They thereby establish a fiduciary
relationship and define the contours of the United States’
fiduciary responsibilities.” 463 U.S. at 224. The statutes at
issue established “comprehensive” federal responsibilities to
manage the harvesting of Indian timber and instructed that
sales of Indian timber should be “based upon the Secretary’s
consideration of ‘the needs and best interests of the Indian
owner and his heirs.’” Id. at 222, 224 (quoting 25 U.S.C.
§ 406(a)).
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Together, Mitchell I and Mitchell II make clear that
neither the general trust relationship between the federal
government and Indian Tribes nor the mere invocation of trust
language in a statute (as in the Allotment Act) is sufficient to
create a cause of action for breach of trust. As the Court later
explained, “[a]lthough the undisputed existence of a general
trust relationship between the United States and the Indian
people can reinforce the conclusion that the relevant statute or
regulation imposes fiduciary duties, that relationship alone is
insufficient to support jurisdiction under the Indian Tucker
Act. Instead, the analysis must train on specific rights-creating
or duty-imposing statutory or regulatory prescriptions.”
Navajo I, 537 U.S. at 506 (emphasis added) (alteration,
internal quotation marks, and citation omitted).

In Navajo I and White Mountain – decided the same day
– a divided Supreme Court further fleshed out these trust
principles. In Navajo I, the Tribe asserted that the Secretary of
the Interior committed a breach of trust by approving a sub-
standard royalty rate in a coal lease on a tract of Indian land.
537 U.S. at 493. The Tribe argued that the Indian Mineral
Leasing Act of 1938 assigned to the Secretary a fiduciary
obligation to maximize returns from coal leases on Indian
land whenever he exercised his statutory responsibility to
approve mining leases. Id. at 496. The Court disagreed,
notwithstanding that it was aware of the fact that the “Tribe’s
reservation lands . . . are held for it in trust by the United
States.” Id. at 495. Like the Allotment Act in Mitchell I, the
Indian Mineral Leasing Act and associated regulations did not
“assign to the Secretary managerial control over coal leasing.”
Id. at 508. In fact, the statute and regulations did not “even
establish the ‘limited trust relationship’” embodied under the
Allotment Act. Id. (quoting Mitchell I, 445 U.S. at 542).
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White Mountain, in contrast, allowed a trust claim to
proceed. There the Tribe predicated its breach-of-trust claim
on the “1960 Act,” a paragraph-long statute that declared that
a 400-acre parcel of land, which had been used as a military
post and then as a school, was to be “held by the United States
in trust for the White Mountain Apache Tribe, subject to the
right of the Secretary of the Interior to use any part of the land
and improvements for administrative or school purposes for
as long as they are needed for [that] purpose.” 537 U.S. at 469
(quoting Pub. L. No. 86-392, 74 Stat. 8 (1960)). The Secretary
exercised his statutory right of use but allegedly failed to
maintain the property, and the Tribe sued. The Court allowed
the claim to proceed. Unlike the Allotment Act in Mitchell I,
the 1960 Act, if sparsely worded, nevertheless went “beyond
a bare trust” by investing the United States with
“discretionary authority to make direct use of portions of the
trust corpus.” Id. at 474-75. Acknowledging that “the 1960
Act does not, like the statutes cited in [Mitchell II], expressly
subject the Government to duties of management and
conservation,” the Court reasoned that “the fact that the
property occupied by the United States is expressly subject to
a trust supports a fair inference” of an obligation to preserve
the trust property. Id. at 475.

Important to the Court’s conclusion in White Mountain
that the 1960 Act created a cause of action for money
damages was the fact that the Act afforded the Secretary with
a right of use and occupancy. Justices Ginsburg and Breyer,
who joined the majority opinions in both Navajo I and White
Mountain and who were the deciding votes in both cases,
authored a concurrence in the latter explaining how the two
opinions were “not inconsistent.” Id. at 479 (Ginsburg, J.,
concurring). In the White Mountain concurrence, Justice
Ginsburg explained that the “threshold set by the Mitchell
cases is met” because the 1960 Act “expressly and without
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qualification employs a term of art (‘trust’) commonly
understood to entail certain fiduciary obligations . . . and
‘invest[s] the United States with discretionary authority to
make direct use of portions of the trust corpus.’” Id. at 480
(emphasis added) (quoting 537 U.S. at 475); see also id.
(“The dispositive question . . . is whether the 1960 measure,
in placing property in trust and simultaneously providing for
the Government-trustee’s use and occupancy, is fairly
interpreted to mandate compensation for the harm caused by
maladministration of the property.” (emphasis added)).

Collectively, Mitchell I, Mitchell II, White Mountain, and
Navajo I make clear that, while a cause of action for money
damages under the Indian Tucker Act can be inferred as a
concomitant to a specific fiduciary duty owed by the
Government, a Tribe must first “identify a substantive source
of law that establishes” that specific fiduciary duty. Navajo I,
537 U.S. at 506 (emphasis added). This “analysis must train
on specific rights-creating or duty-imposing statutory or
regulatory prescriptions.” Id. A statute’s invocation of trust
terminology is not itself dispositive, since the statute may
create either a judicially enforceable trust as in White
Mountain or a “bare trust,” not judicially enforceable, as in
Mitchell I. What separates a “bare trust” from a bona fide one
is a matter of statutory interpretation, and the real question is
whether the particular statute or regulation establishes rights
and duties that characterize a conventional fiduciary
relationship.

These principles control here, even though the claim is
for equitable relief (not money damages) and even though
sovereign immunity is waived under § 702 of the APA (and
not the Indian Tucker Act). A bit of explanation is called for
since this conclusion is not inevitable. We therefore turn to
the law of the circuit.
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b. Circuit Precedent

The Indian Tucker Act confers jurisdiction to the Court
of Federal Claims and waives sovereign immunity only for a
limited subset of claims, namely those “arising under the
Constitution, laws or treaties of the United States, or
Executive orders of the President, or . . . [claims] which
otherwise would be cognizable in the Court of Federal Claims
if the claimant were not an Indian tribe.” 28 U.S.C. § 1505.
Because of this limited language, facets of the Supreme
Court’s Indian Tucker Act jurisprudence may be unique to the
Indian Tucker Act and, accordingly, not binding on Indian
trust claims brought outside the Act. See COHEN’S HANDBOOK
OF FEDERAL INDIAN LAW § 5.05[3][c].

Although we appreciate this possibility, we nevertheless
apply the lessons articulated in the Mitchell cases. We do so
for two reasons: because this been our approach in past cases
and, as important, because the Tribe has not marshaled an
argument that we should reconsider our approach. We
amplify both points below.

First, we have consistently relied on principles
announced in Indian Tucker Act cases in trust cases not
arising under the Act. We stated in North Slope Borough v.
Andrus, 642 F.2d 589 (D.C. Cir. 1980), that a “trust
responsibility can only arise from a statute, treaty, or
executive order; in this respect we are governed by [Mitchell
I] holding that the United States bore no fiduciary
responsibility to Native Americans under a statute which
contained no specific provision in the terms of the statute.” Id.
at 611 (internal quotation marks and footnote omitted);
accord Shoshone-Bannock Tribes v. Reno, 56 F.3d 1476,
1482 (D.C. Cir. 1995) (“[T]he government’s fiduciary
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responsibilities necessarily depend on the substantive laws
creating those obligations.” (citing the Mitchell cases)).

Our decision in Cobell VI, upon which the Tribe relies, is
not to the contrary. Cobell v. Norton (Cobell VI), 240 F.3d
1081 (D.C. Cir. 2001). It is true that there we quoted Mitchell
II to say that a “‘fiduciary relationship necessarily arises when
the Government assumes such elaborate control over forests
and property belonging to Indians. All of the necessary
elements of a common-law trust are present: a trustee (the
United States), a beneficiary (the Indian allottees), and a trust
corpus (Indian timber, lands, and funds).’” Id. at 1098
(quoting 463 U.S. at 225). However, we said this not to
suggest that an actionable fiduciary relationship arises merely
by operation of federal common law. Rather, we explained
that the common law informs the interpretation of statutes that
establish the elements of a common-law trust without
employing the terms of art. The Mitchell II rule, we said,
“operates as a presumption,” such that “‘where the Federal
Government takes on or has control or supervision over tribal
monies or properties, the fiduciary relationship normally
exists with respect to such monies or properties (unless
Congress has provided otherwise) even though nothing is said
expressly in the authorizing or underlying statute (or other
fundamental document) about a trust fund, or a trust or
fiduciary connection.’” Id. (emphasis added) (quoting 463
U.S. at 225). We then reiterated that a fiduciary relationship
depends on substantive laws, stating that “the government’s
obligations are rooted in and outlined by the relevant statutes
and treaties.” Id. at 1099.

Second, the Tribe has not argued that the principles
enunciated by the Supreme Court in the Indian Tucker Act
cases do not control here. To be sure, it drops hints of
disagreement in its brief – a footnote stating parenthetically
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that some courts “fail to distinguish between” claims for
money damages and those for equitable relief, Navajo Br. at
53 n.10, and a clause referring to the “even more rigorous
jurisdictional requirements of the . . . Indian Tucker Act.”
Navajo Reply at 12; see also Navajo Br. at 16. But the Tribe
never propounds a viable theory to contest the applicability of
the established law of the circuit. Therefore, we are
constrained to apply the standards articulated in the Indian
Tucker Act cases to the trust claim before us.

2. The Tribe’s Arguments

The Tribe argues that various statutes establish an
enforceable fiduciary duty. We disagree.

a. 25 U.S.C. § 640d-9(a)

The Tribe’s primary contention on appeal is that, because
the land in question is subject to an “express trust” under 25
U.S.C. § 640d-9(a), the Government uses the land subject to
an enforceable fiduciary duty to manage and preserve the trust
res, i.e., the occupied tribal land. See Navajo Br. at 50 (citing
White Mountain, 537 U.S. at 475). The Tribe’s position
reduces to a simple formula: an express trust plus actual
governmental control equals enforceable trust duties.

This argument has surface-level appeal based on a loose
congruence between the claims in White Mountain and here.
Both involve allegations of governmental control over Indian
property designated by statute as some sort of trust. And both
statutes say precious little. Section 640d-9(a) provides that
certain designated lands “shall be held in trust by the United
States exclusively for the Navajo Tribe and as a part of the
Navajo Reservation.” 25 U.S.C. § 640d-9(a) (emphasis
added). Meanwhile, the statute in White Mountain stated that
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“all right, title, and interest of the United States in and to the
lands, together with the improvements thereon, included in
the former Fort Apache Military Reservation . . . are hereby
declared to be held by the United States in trust for the White
Mountain Apache Tribe, subject to the right of the Secretary
of the Interior to use any part of the land and improvements
for administrative or school purposes for as long as they are
needed for that purpose.” 74 Stat. at 8 (emphasis added).

But § 640d-9(a) differs in a crucial respect from the 1960
Act in White Mountain: It does not afford the government the
right to use the land in question. This difference, far from
inconsequential, leads to the conclusion that § 640d-9(a) is a
“bare trust” in the realm of Mitchell I, i.e., one that does not
afford the Tribe with a cause of action. As noted above, the
Supreme Court relied on the Government’s express right of
use in concluding that the 1960 Act created an enforceable
cause of action for breach of trust. See White Mountain, 537
U.S. at 475; id. at 480 (Ginsburg, J., concurring). This makes
sense: It is natural to infer that Congress intended that a
correlative duty to maintain trust property would attach to an
expressly provided right of use (if invoked). Unlike the 1960
Act, § 640d-9(a) offers no hook to find a correlative duty of
management; the statute includes only the phrase “shall be
held in trust.” This is not enough, even if paired with
allegations of governmental control at the Mill, the Dump,
and the Highway 160 Site, because nothing in the pleadings
or record suggest that the Government took control of the
premises pursuant to § 640d-9(a).

Unable to infer specific fiduciary duties from
§ 640d-9(a), we conclude that the section does not create a
cause of action for the Tribe. In reaching this conclusion, we
do not, of course, suggest that an express right of
governmental use is always necessary to find that a statute
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affords a cause of action for breach of trust. However,
governmental use may be relevant when a statutory reference
to “trust” does not itself indicate whether Congress intended
to establish specific fiduciary duties or a “bare trust” instead.

Our conclusion in this case is mandated by the Supreme
Court’s decision in United States v. Navajo Nation (Navajo
II), 556 U.S. 287 (2009), which was not brought to our
attention by the parties. On remand after Navajo I rejected a
trust claim predicated on the Indian Mineral Leasing Act, the
Federal Circuit relied on 25 U.S.C. § 640d-9(a) combined
with allegations of control – the very argument pressed here –
to conclude that the Tribe’s claim was viable after all. Navajo
Nation v. United States, 501 F.3d 1327, 1340-41 (Fed. Cir.
2007). The Federal Circuit reasoned that where “the
government exercises actual control within its authority,
neither Congress nor the agency needs to codify such actual
control for a fiduciary trust relationship that is enforceable by
money damages to arise.” Id. at 1343 (citing White Mountain,
537 U.S. at 475).

The Supreme Court reversed. Although the Supreme
Court did not specifically address 25 U.S.C. § 640d-9(a) in
Navajo II, it rejected the Federal Circuit’s reasoning
wholesale: “None of the sources of law cited by the Federal
Circuit and relied upon by the Tribe provides any more sound
a basis for its breach-of-trust lawsuit against the Federal
Government than those we analyzed in Navajo I. This case is
at an end. The judgment of the Court of Appeals is reversed,
and the case is remanded with instructions to affirm the Court
of Federal Claims’ dismissal of the Tribe’s complaint.”
Navajo II, 556 U.S. at 302.

Simply put, Navajo II forecloses the Tribe’s arguments
that § 640d-9(a) plus the Government’s control establishes an
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actionable fiduciary relationship. The Court also makes clear
that it reached its conclusion without regard to considerations
unique to money damages. See id. (“Because the Tribe cannot
identify a specific, applicable, trust-creating statute or
regulation that the Government violated, we do not reach the
question whether the trust duty was money mandating.”). As
the Court explained:

If a plaintiff identifies such a [rights-creating or duty-
imposing statutory or regulatory] prescription, and if that
prescription bears the hallmarks of a “conventional
fiduciary relationship,” White Mountain, 537 U.S. at 473,
then trust principles (including any such principles
premised on “control”) could play a role in “inferring that
the trust obligation [is] enforceable by damages” . . . . But
that must be the second step of the analysis, not (as the
Federal Circuit made it) the starting point.

Id. at 301.

b. The Indian Dump Cleanup Act, the Indian
Agricultural Act, and the Mill Tailings Act

The Tribe next argues that the Indian Agricultural Act,
the Indian Dump Cleanup Act, and the Mill Tailings Act also
impose enforceable trust duties. Navajo Br. at 50. We need
not tarry long over these claims.

The Mill Tailings Act does not purport to establish a
conventional fiduciary relationship with an attendant cause of
action for breach of trust. To begin with, as we observed in El
Paso II, the Mill Tailings Act’s “statement of purpose reveals
that Congress passed the statute to protect public health in
general rather than tribal health in particular.” 632 F.3d at
1278 (emphasis added); see also 42 U.S.C. § 7901(b) (a
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purpose is to “minimize or eliminate radiation health hazards
to the public” (emphasis added)). Furthermore, unlike the
statutory language in Mitchell II, which plainly created a
conventional fiduciary relationship, see 463 U.S. at 224
(observing how a section of a 1910 act mandated that timber
sales be based on “the needs and best interests” of the Indian
owners), the language in the Mill Tailings Act manifests no
similar “hallmarks of a conventional fiduciary relationship,”
Navajo II, 556 U.S. at 301 (internal quotation marks omitted).
To the contrary, Congress took pains to insulate the
Government from liability concerning the remediation, see 42
U.S.C. § 7915(a)(1), and from judicial review with respect to
the Secretary of Energy’s designation of sites, see id.
§ 7912(d). The legislative history reinforces our conclusion
because it suggests that Congress did not intend to alter any
trust duties, one way or the other. See H.R. REP. NO. 95-1480,
pt. 2, at 39 (1978) (“The committee does not intend by this act
to affect the responsibilities of the Secretary of the Interior as
trustee for any Indian Tribe.”).

Nor does the Indian Agricultural Act impose
independently enforceable trust duties. Although the Act
mentions the Government’s “trust responsibility” in stating its
findings and purposes, 25 U.S.C. §§ 3701, 3702, Congress
was quite clear that “[n]othing in this chapter shall be
construed to diminish or expand the trust responsibility of the
United States toward Indian trust lands or natural resources,
or any legal obligation or remedy resulting therefrom,” id.
§ 3742 (emphasis added). To construe the Act as
independently creating an enforceable trust responsibility
would contravene the plain intent of Congress.

Any trust claim founded on the Indian Dump Cleanup
Act fares no better. Granted, this statute, like the previous
one, states in its findings that “the United States holds most
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Indian lands in trust for the benefit of Indian tribes and Indian
individuals.” 25 U.S.C. § 3901(a)(5). But the statute does not
vest in the Government – either expressly as in Mitchell II or
by implication as in White Mountain – any responsibility for
management or control of Indian property. To the contrary,
the statute imposes a duty upon the Director of the Indian
Health Service to assist tribal governments as they “carry out
the activities necessary” to close open dumps. Id. § 3904(b).
Because the statute contemplates management and control in
the hands of tribal governments, the Indian Dump Cleanup
Act falls comfortably within the ambit of Mitchell I.

To summarize: none of the cited sources of law – 25
U.S.C. § 640d-9(a), the Indian Agricultural Act, the Indian
Dump Cleanup Act, and the Mill Tailings Act – create a
conventional fiduciary relationship that is enforceable as a
breach of trust either under the APA or as a separate cause of
action implied from the nature of the trust relationship as
provided by the Mitchell doctrine. We therefore have no
occasion to determine the contours of the fiduciary duties
owed by the Government. See Navajo Br. at 52 (arguing that
the cited statutes “establish the contours of trust duties to be
complemented with principles of general trust law”).

c. Other Statutes

Finally, the Tribe argues that federal agencies, as a
component of their fiduciary responsibilities, have a minimum
duty to comply with generally applicable laws if their actions
affect trust property. Navajo Br. at 52-54. This argument has
no traction. The Tribe does not contend that, under the
Mitchell doctrine, these generally applicable statutes afford it
a cause of action for breach of trust, and for good reason. The
generally applicable statutes – e.g., RCRA and the Clean
Water Act – do not establish a conventional fiduciary
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relationship. Therefore, the Tribe’s last argument is without
merit.

III. CONCLUSION

For the reasons stated above, we affirm the judgment of
the District Court on all but two points. First, we reverse the
dismissal “with prejudice” of Appellants’ RCRA claims that
relate to the Dump. We hereby remand with instructions to
the District Court to enter judgment against Appellants
“without prejudice.” Second, we vacate the District Court’s
dismissal of Appellants’ RCRA claims as to the Highway 160
Site and remand the case so that these claims can be
considered on the merits.

So ordered.