Appellate Case: 19-2197 Document: 010110678995 Date Filed: 05/03/2022 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS May 3, 2022
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
JOE C. ALLEN, JR.; CAROL ANAGAL;
CHERYL ARMENTA; DUANE
ASPAAS; LEONTYNE ATCITTY; LULA
ATCITTY; WILFORD ATSON; HILDA
BALDWIN; AARON BARBER; DAISY
BARBER; PAUL BARBER; ROGER
BARBER; ALICE BEGAY; ANDY
BEGAY; ARLENE BEGAY; BERNITA
BEGAY; BETTY BEGAY; CAROLINE No. 19-2197
BEGAY; CHARLENE BEGAY;
CORLIVIA BEGAYE; ELIZABETH
BEGAY; ERIC BEGAY; HELEN
BEGAY; JACQUELINE L. BEGAY;
JACQUELINE S. BEGAY; JONAH
BEGAY; JUDY BEGAY; MAE BEGAY;
MARYLITA BEGAY; ROY BEGAY;
SANDRA BEGAY; VIRGINIA BEGAY;
WAYNE BEGAY; ETTA BEGAYE;
JENATHAN BEGAYE; RICHARD
BEGAYE; ROBERT BEKISE; DAVID
BEN; RECHELLEDA BENALLIE; DINA
BENALLY; ERNEST BENALLY;
HARRY BENALLY; JEANNIE
BENALLY; MAX BENALLY; NINA
BENALLY; PEARLENE BENALLY;
ROSE BENALLY; STEVE BENALLY;
SUSAN BENALLY; WANDA
BENALLY; LARENA BENN; LYNALLA
BENN; SHIRLEY BIA; PRISCILLA
BIGMAN; VERNIDA BISSONETTE;
LORRAINE BLACK; MABLE BLACK;
TAYLOR BLACK; TOM
BLACKHORSE; ANNIE BLUEEYES;
SCOTT BRADY; ANDREW
BREWSTER; DARLENE BRONSTON;
JANICE TERRI BROWN; JACKSON
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BUNNY, JR.; ALBERT BYLILLY;
HARRISON CATTLEMAN, JR.;
SAMMY CHARLEY; WILMA
CHARLEY; DARRELL CLAH;
BENJAMIN CLARK; MARY CLARK;
TONI CLAW; LAHOMA CLY; STELLA
CLY; DORIS COOLIDGE; JIMMIE
COOLIDGE; WILBERT COWBOY, JR.;
ALFRED CURLEY; DON CURLEY, JR.;
MELVIN CURLEY; MARTHA CURTIS;
RACHEL DEE; DAVIDSON DEVORE;
LUCY DICK; MARLENE DOBEY;
ELTON DODGE; SUSIE DODGE;
TOMMY DRAPER; BESSIE DUNCAN;
CECIL DUNCAN; THURSTON EDDIE;
HERMAN ENOAH; MARY ENOAH;
VERNESE ESPLAIN; ALLEN E.
ETSITTY; BERTHA A. ETSITTY;
HURON ETSITTY; RENA FASTHORSE;
JANICE FRANK; SARAH FRANK;
GENE FRED; KEE DAN; LOREN
GARNANEZ; SHALINA GRANDSON;
JAMES GRANT; CRYSTAL GREY;
REYVETTE GREY; SHAWNA HAMM;
JULIE HARRISON; MARGARET
HARRISON; HUBERT HARWOOD;
EMERSON HATATHLEY; LORETTA
HATATHLEY; ANITA HAYES; PERRY
HAYES; ROBERT HAYES; ROBIN
HAYES; WALLACE HAYES; LOUISE
HENDERSON; ANNIE HENRY; ELSIE
HENRY; FREDDIE HOBSON; JOANNE
HOLLIDAY; TOM HORSE; DAISY
HOUSER; HELEN HOWARD; HERMAN
HUNT; IRITA JAMES; EDDIE JAY;
GARRY JAY; MARY JAY; CHARLEY
JIM; DANIEL JIM; DARRELL JIM;
FANNIE MARIE JIM; GENEVA JIM;
JONAH JIM; KYLE JIM; NORMAN JIM,
SR.; SHEILA JIM; VIRGINA JIM; ELSIE
JOE; LITA JOE; FRANK JOHN, JR.;
HERMAN JOHN; HARRISON
JOHNSON; JESSIE JOHNSON; ANNE
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JOHNSON; JEAN JONES; LENA J.
JONES; RAYMOND JONES; RENITA T.
JONES; THERON JONES; WESLEY
JONES; DARREN KEE; JUANITA KEE;
MAX KELLYWOOD, SR.; FRANCINE
KIEFERT; FLORENCE B. KING;
MARLENA KING; TERRI LAMEMAN-
AUSTIN; GLORIA LANE; HARRY
LANE; ADA LANSING; JOHN
LANSING; ALBERT H. LEE; EMERSON
LEE; EVELYN M. LEE; LEONARD LEE,
SR.; MARIE LEE; MICHELLE A. LEE;
ROSELYN LEE; MICHAEL N. LITTLE;
ROWENA LITTLEHAT; IRENE
LIVINGSTON; CARMELITA LOWE;
CYNTHIA MADISON; MARY ANN
MANYGOAT; ESTHER MARK; MAE
MARTIN; GERALD MARYBOY;
JAMES MASON; BEVERLY
MAXWELL; WALLACE MCGILBERT;
ROSINA T. MERRITT; SHERRELL G.
MESA; RON MILLER; EMMA
MITCHELL; LAURA M. MITCHELL;
LUCY B. MITCHELL; SYLVIA
MITCHELL; MARLIYN MUSTACHE;
ANTHONY NABAHE; BETTY JONES
NAKAI; HARRY S. NAKAI; JIMMY
NAKAI; BYRON NELSON; PAULINE D.
NELSON; RUBY NELSON; TONITA
NELSON; RUTH NEZ; ANNIE
OLDMAN; RAYMOND OLDMAN;
BESSIE S. PELT; HARRY PESHLAKAI,
SR.; THOMAS PETE; RAYMOND
PETTIGREW; CHARLES PHILLIPS;
CHARLES D. PHILLIPS; DOROTHY
PHILLIPS; MARY J. PHILLIPS;
VERNON PHILLIPS; WILSON
PHILLIPS; SHANDIE PIOCHE; SARAH
POLICE; ESTHER REDDOOR; ELLA
REDHOUSE; LUCY RENTZ; PHILLIP
RENTZ; NELSON ROCKWELL;
PERFINA ROCKWELL; RONNIE ROSS;
LARRY B. SAM; BOBBY SANDOVAL;
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LULA SANDOVAL; SUSIE SCOTT;
RAYMOND G. SELLS; ROGER
SHAGGY; ROGER SHERMAN; BESSIE
SHORTHAIR; DAVID SHORTHAIR;
WADE SHORTHAIR; CELESTE SILAS;
ELLA SILAS; MARILYN SILAS; RUBY
B. SILAS; CHRISTINA SILENTMAN;
JAMES SIMPSON; ROGER L.
SIMPSON; GEORGE L. SISCO, JR.;
SARAH SLOWMAN; ERIC
SMALLCANYON; TEDDY
SMALLCANYON; ROSE ANN
TANNER; BESSIE TESSWOOD; THE
ESTATE OF LEON JONES; THE
ESTATE OF ROSE MERRITT; THE
ESTATE OF WAYNE SALTWATER;
DORA TODACHEENE; JERRY
TODACHEENE; LEWIS
TODACHEENE; CHARLIE N.
TODACHEENIE; HERBERT
TODACHENNIE; IRENE
TODACHENNIE; BERNADINE
TODECHENE; VINCENT TODECHENE;
DOROTHY TODECHINE; FLORA
TODECHINE; ROSELYN TOLEDO;
HELEN TOM; SARAH A. TONY
BENALLY; MARY TSO; IVAN TYLER;
THOMAS T. TYLER; PHYLLIS
VALDEZ; ANNA VIGIL; CECILIA
WALLACE; JOHNSON WASHBURN,
JR.; JOHNSON WASHBURN, SR.;
ROSELYN WATCHMAN; CLARENCE
D. WESTON; CORNELIA WESTON;
DELLA WESTON; HAROLD
WILLIAMS; LENORA WILLIAMS;
HERBERT WILLIE; LENA WILLIE;
RAYMOND G. WILLIE; ESTHER A.
YANITO; ALICE D. YAZZIE; CALVIN
YAZZIE; EARL D. YAZZIE; IRVIN
YAZZIE; JAY YAZZIE; LORENZO
YAZZIE; MARIE YAZZIE; SUSIE
YAZZIE; LAURENCE BEKISE;
TIMOTHY BEN,
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Plaintiffs - Appellees,
v.
ENVIRONMENTAL RESTORATION,
LLC,
Defendant - Appellant,
and
GOLD KING MINES CORPORATION;
KINROSS GOLD CORP.; KINROSS
GOLD USA, INC.; UNITED STATES OF
AMERICA; UNITED STATES
ENVIRONMENTAL PROTECTION
AGENCY; SUNNYSIDE GOLD
CORPORATION; WESTON
SOLUTIONS, INC.,
Defendants.
---------------------------------------
SUNNYSIDE GOLD CORPORATION,
Amicus - Curiae.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. Nos. 1:18-CV-00744-WJ-KK &
1:18-MD-02824-WJ)
_________________________________
Rory S. Miller, Glaser Weil Fink Howard Avchen & Shapiro LLP (Terry D. Avchen and
Peter C. Sheridan, with him on the brief), Los Angeles, California, for Defendant-
Appellant Environmental Restoration, LLC.
Kate Ferlic, Egolf + Ferlic + Martinez + Harwood (Kristina Martinez and Mark Cox,
with her on the brief), Santa Fe, New Mexico, for Plaintiffs-Appellees Joe C. Allen, et al.
_________________________________
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Before McHUGH, Circuit Judge, LUCERO, Senior Circuit Judge, and CARSON,
Circuit Judge.
_________________________________
CARSON, Circuit Judge.
_________________________________
When Congress passed the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251–
1389, it established an all-encompassing program of water pollution regulation. The
CWA preserved certain state law actions, but it set forth a detailed regulatory
system—so carefully prescribed that a court must apply the point source state’s
substantive law to these state law claims, no matter the forum. The Supreme Court
made that much clear over a quarter century ago. But today we confront what statute
of limitations controls such state law claims—the forum state, the point source state,
or federal. Just as the forum state must apply the point source state’s substantive
law, today we hold it also must apply the point source state’s statute of limitations.
We exercise jurisdiction under 28 U.S.C. § 1292(b) and reverse.
I.
During excavation of an inactive gold mine in southwestern Colorado, a
blowout caused the release of at least three million gallons of contaminated water
into Cement Creek. The water from Cement Creek flows into the Animas and San
Juan Rivers, which continue into New Mexico. The United States Environmental
Protection Agency (“EPA”) has conceded its responsibility for the spill and its
impacts. The State of New Mexico, the Navajo Nation, and the State of Utah
separately filed civil actions, under the CWA, in New Mexico and Utah against the
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owners of the mine, the EPA, and the EPA’s contractors. Defendant Environmental
Restoration, LLC moved to transfer the Utah case to the District of New Mexico for
coordinated or consolidated pretrial proceedings. The United States Judicial Panel on
Multidistrict Litigation granted the motion and centralized proceedings in the District
of New Mexico. Later, the Allen Plaintiffs—individuals who farm land or raise
livestock along the Animas River or San Juan River—filed a complaint in the District
of New Mexico that included state law claims of negligence, negligence per se, and
gross negligence. The district court consolidated the Allen Plaintiffs’ suit, including
the state law claims, into the Multidistrict Litigation.
Defendant Environmental Restoration, LLC moved to dismiss the Allen
Plaintiffs’ Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing
that the Allen Plaintiffs did not file their complaint within Colorado’s two-year
statute of limitations and therefore they failed to state a claim. The Allen Plaintiffs
responded that they timely filed under New Mexico’s three-year statute of
limitations. The district court denied the motion to dismiss, reasoning that New
Mexico’s three-year statute of limitations applied to the Allen Plaintiffs’ state-law
claims. The district court certified the issue for interlocutory appeal. We granted
Defendant’s Petition for Permission to Appeal.
II.
Despite the CWA’s “pervasive regulation” and “the fact that the control of
interstate pollution is primarily a matter of federal law,” the CWA specifically
preserves certain state actions. Int’l Paper Co. v. Ouellette, 479 U.S. 481, 492, 497
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(1987); 33 U.S.C. § 1365(e) (“Nothing in this section shall restrict any right which
any person . . . may have under any statute or common law to seek enforcement of
any effluent standard or limitation or to seek any other relief”). International Paper
made clear that point source state substantive law applies to such state actions. Id. at
497. But the Allen Plaintiffs contend that the Supreme Court’s holding in
International Paper does not extend to procedural law, such as the application of a
statute of limitations. On appeal, Defendant argues that Congress’s intent in passing
the CWA, along with relevant Supreme Court precedent, mandates that Colorado’s
two-year statute of limitations applies to the Allen Plaintiffs’ state law claims. The
Allen Plaintiffs, however, contend that nothing in the CWA or the Supreme Court’s
precedent changes the general rule that the forum state’s statute of the limitations
applies. Alternatively, the Allen Plaintiffs assert that if the CWA caused preemption
of the forum state’s statute of limitations, we should apply the federal, five-year
“catch-all” statute of limitations in 28 U.S.C. § 2462. We review whether a district
court properly applied a statute of limitations de novo. Brady v. UBS Fin. Servs.,
Inc., 538 F.3d 1319, 1323 (10th Cir. 2008) (citations omitted). And we conclude that
the district court did not here because both the CWA and the Supreme Court’s
interpretation of the CWA compel a district court to apply the point source state’s
statute of limitations to state law claims preserved under the CWA.
Generally, a “federal court hearing a diversity action applies the statute of
limitations which would be applied by a court of the forum state, . . . even when the
action is brought under the law of a different state.” Dow Chem. Corp. v. Weevil-
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Cide Co., Inc., 897 F.2d 481, 483–84 (10th Cir. 1990) (internal citation omitted).
But Congress has the power to preempt state statutes of limitation. Cf. CTS Corp. v.
Waldburger, 573 U.S. 1, 4 (2014) (stating that the discovery rule in a federal statute
preempted a state statute of limitations in conflict with the federal statute’s terms).
So here, we must determine whether the CWA modifies our general proposition.
Congress adopted comprehensive amendments to the CWA in 1972. See Int’l
Paper, 479 U.S. at 488. And Congress intended those amendments to “establish an
all-encompassing program of water pollution regulation.” Milwaukee v. Illinois, 451
U.S. 304, 318 (1981). The CWA “makes it clear that affected States”—those that
share an interstate waterway with the point source states—“occupy a subordinate
position to source States in the federal regulatory program.” Int’l Paper, 479 U.S. at
491. Congress did not intend to undermine their “carefully drawn statute through a
general saving clause.” Id. at 494. Thus, “the preemptive scope of the CWA
necessarily includes all laws that are inconsistent with the ‘full purposes and
objectives of Congress.’” Id. at 499 n.20 (quoting Hillsborough Cnty. v. Automated
Med. Lab’ys., 471 U.S. 707, 713 (1985)). The Supreme Court did not limit its
language.1 “All” means all.
1
The Allen Plaintiffs contend that International Paper’s holding applies only
to “common law” and that statutes of limitations are set by statute—not common law.
The Supreme Court’s use of the phrase “common law” throughout International
Paper makes sense in context. In International Paper, the Court addressed whether
the CWA preempted a common law nuisance suit filed in an affected state, much like
the Allen Plaintiffs’ claim. 479 U.S. at 483. Besides common law claims, the
savings clause also preserves certain statutory claims—none of which were at issue
in International Paper. Given the posture of the case, we are unsurprised with the
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Here, application of the forum state’s statute of limitations is inconsistent with
Congress’s full purposes and objectives in passing the CWA—one being efficiency,
predictability, and certainty in determining liability for discharging pollutants into an
interstate body of water. Id. at 496–97. The Allen Plaintiffs seek to limit
International Paper to a court’s application of substantive law. True, in International
Paper, the Supreme Court addressed an issue of substantive law. But the Court’s
analysis applies equally to the application of all law—including procedural—that is
inconsistent with Congress’s full purposes and objectives. See supra note 1. And
applying a forum state’s statute of limitations would do just that. Congress’s goals in
passing the CWA—uniformity, efficiency, certainty, and predictability—suggest that
a single statute of limitations should govern all state law claims emanating from a
single water-polluting event. See Cantrell v. Int’l Bhd. of Elec. Workers, Loc. 2021,
32 F.3d 465, 467 (10th Cir. 1994) (recognizing the need for uniformity in statutes of
limitation for one claim); see also Owens v. Okure, 488 U.S. 235, 240 (1989) (noting
predictability as a “primary goal” of statutes of limitation). Allowing different state
statutes of limitation to apply “would only exacerbate the vagueness and resulting
uncertainty” Congress sought to avoid. Int’l Paper, 479 U.S. at 496. Consistency
and predictability in this context involve far more than just the substantive issue of
differing standards of effluent control. A comprehensive regulatory scheme is no
Court’s usage of the phrase “common law” throughout the opinion. But the Court
did not limit or qualify its statement that all laws inconsistent with the full purposes
and objectives of Congress to common law claims only. Id. at 499 n.20.
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longer comprehensive when a defendant to an action cannot predict how long it may
be subject to suit.
The Allen Plaintiffs argue that statutes of limitation are merely procedural
devices that cannot create or impose any legal liability. That may be so, but statutes
of limitation “serve the important purpose of encouraging the prompt filing of claims
and by doing so of enhancing the likelihood of accurate determinations and removing
debilitating uncertainty about legal liabilities.” Vergara v. City of Chicago, 939 F.3d
882, 887 (7th Cir. 2019) (quoting Shanoff v. Ill. Dep’t of Hum. Servs., 258 F.3d 696,
703 (7th Cir. 2001)). Without a uniform statute of limitations, a defendant is exposed
to lawsuits potentially indefinitely, which “would frustrate the carefully prescribed
CWA regulatory system.” Int’l Paper, 479 U.S. at 499 n.20. Such an approach
contradicts the CWA’s policy of consistency and predictability.2
2
The Allen Plaintiffs cite three cases from West Virginia they claim support
their position that some courts have applied International Paper to preempt
substantive law only. None accomplish that stated goal. The first case, Ashland Oil,
Inc. v. Kaufman, 384 S.E.2d 173, 179–80 (W. Va. 1989), did not address the
situation we address today. The Supreme Court of Appeals of West Virginia stated
that whether the Clean Air Act regulated the emissions at issue in that case—thus
preempting West Virginia’s common law or statutes—was unknown at the time of
the opinion. Id. It simply held that International Paper required applying the
statutory or common law of the source state to an interstate pollution dispute when
the Clean Air Act regulated the pollutants. Id. at 180. The court’s statement that it
would follow West Virginia’s procedural law, id., is unremarkable when the court
had not even determined whether the Clean Air Act applied or if the procedural law
was inconsistent with Congress’s full purposes and objectives. Next, the Allen
Plaintiffs cited Arnoldt v. Ashland Oil, Inc., 412 S.E.2d 795 (W. Va. 1991), another
Supreme Court of Appeals of West Virginia case. In that case, the court repeated its
earlier holding that “the procedural law of West Virginia shall be followed when the
issues [interstate pollution disputes] are being litigated in this State’s courts.” Id. at
800 (quoting Kaufman, 384 S.E.2d at 180). The court then said that because
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Plaintiff’s alternative argument, that we should apply the five-year federal
“catch all” statute of limitation also fails. As a general proposition, a “federal court
sitting in diversity applies state law for statute of limitations purposes.” Burnham v.
Humphrey Hosp. Reit Trust, Inc., 403 F.3d 709, 712 (10th Cir. 2005) (citing
Guaranty Tr. Co. v. York, 326 U.S. 99, 109–10 (1945)). And nothing changes that
general rule here. The cases the Allen Plaintiffs rely on for support involved citizen
suits brought pursuant to the CWA—in other words, suits brought under federal law.
See Pub. Int. Rsch. Grp. v. Powell Duffryn Terminals Inc., 913 F.2d 64, 69 (3d Cir.
1990) (involving nonprofit corporation plaintiffs filing a citizen suit under § 505 of
the CWA); Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517, 1520–21 (9th Cir.
1987) (same); Atlantic States Legal Found. v. Al Tech Specialty Steel Corp., 635 F.
Supp. 284, 286–87 (N.D.N.Y. 1986) (same). Those cases applied the federal “catch
all” statute of limitations to a federal claim—a situation different from the state law
claims at issue.
awarding punitive damages is substantive, rather than procedural, it would apply the
source state’s law. Id. at 805. It also applied West Virginia evidentiary rules. Id. at
813–14. But nowhere did the court discuss whether any procedural law was
inconsistent with Congress’s full purposes and objectives. Finally, the Allen
Plaintiffs cite Bocook v. Ashland Oil, Inc., 819 F. Supp. 530 (S.D. W. Va. 1993).
Bocook did not discuss which procedural law governed. Rather, it said in a footnote
that the parties agreed, and the court concurred, that in cases involving interstate
pollution, the point source state’s substantive law applies. Id. at 532 n.1. Again, we
all agree on that proposition. These West Virginia cases do not analyze the situation
before us—what state’s statute of limitations applies when the procedural law is
inconsistent with Congress’s full purposes and objectives.
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Because we hold that a district court must apply the point source state’s statute
of limitations to state law claims preserved under the CWA, we remand to the district
court for proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
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