Dine Citizens Against Ruining Our Environment et al v. Office of Surface Mining Reclamation and Enforcement et al

Filing 31

ORDER denying 22 Motion to Dismiss, by Judge John L. Kane on 1/4/13.(mjgsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane
Civil Action No. 12-cv-1275-AP
DINÉ CITIZENS AGAINST RUINING OUR ENVIRONMENT,
SAN JUAN CITIZENS ALLIANCE,
SIERRA CLUB,
CENTER FOR BIOLOGICAL DIVERSITY, and
AMIGOS BRAVOS,
Plaintiffs,
v.
UNITED STATES OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT, an agency within the U.S. Department of Interior;
KENNETH L. SALAZAR, in his official capacity as Secretary of the Interior;
AL KLEIN, in his official capacity as Regional Director of the U.S. Office of Surface Mining
Reclamation and Enforcement, Western Division;
BOB POSTLE, in his official capacity as Manager of the Program Support Division for the
Western Region of the Office of Surface Mining Reclamation and Enforcement;
RICK WILLIAMSON, in his official capacity as Manager of the Indian Programs Branch of
the Western Region of the Office of Surface Mining Reclamation and Enforcement; and
MYCHAL YELLOWMAN, in his official capacity as Navajo Mine Team Leader in the Office
of Surface Mining Reclamation and Enforcement,
Defendants.

ORDER DENYING MOTION TO DISMISS

Judge John L. Kane, ORDERS
Respondent-Intervenor the Navajo Nation (“Tribe)” moves to dismiss this lawsuit for
failure to join a party pursuant to Federal Rules of Civil Procedure 12(b)(7) and 19. The
lynchpin of the Tribe’s argument is the doctrine of sovereign immunity, namely that because it is
both an indispensable party and immune from suit, the action itself must be dismissed. (Doc. 22)
Diné Citizens Against Ruining Our Environment (“Diné CARE”), San Juan Citizens Alliance,
1

Sierra Club, the Center for Biological Diversity, and Amigos Bravos (collectively, “Citizens”)
oppose the motion, urging me to apply the public rights exception to traditional joinder rules
involving sovereign immunity. I accept the invitation and DENY the motion to dismiss.1
Background2
The Navajo Mine, operated by Respondent-Intervenor BHP Navajo Coal Company
(BHP), is an open-pit coal strip mine sprawling over 13,000 acres. The mine is located entirely
within the boundaries of the Navajo Reservation on land the Tribe originally leased to BHP’s
predecessor (Utah Construction and Mining Company) in 1957. Strip-mining operations have
been ongoing since the early 1960s. Respondent Office of Surface Mining Enforcement and
Reclamation (OSM) is the regulatory authority for permitting strip-mining and assuring
compliance with the National Environmental Policy Act (NEPA) for operations on Indian lands,
and the tribes comment through the Bureau of Indian Affairs (BIA) on permitting decisions. 30
C.F.R. § 750.6(a)(1)-(2), (7), (d); cf. 30 U.S.C. § 1300(j) (granting tribes limited authority over
abandoned mine programs on Indian lands, but not general permitting and regulatory authority).
The Navajo Mine is, and has always been, the sole source of coal for the adjacent Four
Corners Power Plant (FCPP), which was built specifically to burn the coal from that mine. The
Navajo Mine supplies approximately 8.5 million tons of coal to FCPP annually, though that
number may fluctuate downward to as low as 6.4 million tons, depending on FCPP’s demands.
1

The Tribe’s Motion to Dismiss was filed in conjunction with its Motion to Intervene,
whereupon receiving I issued a Minute Order stating: “Plaintiffs [sic] shall file a response either
opposing or acquiescing to [the Nation’s] motions as set forth in [22] no later than October 1,
2012, by Judge John L. Kane on 9/10/12.” ECF No. 24. On September 27, 2012, Petitioners
filed their Response in Opposition to the Tribe’s Motion to Dismiss, with three supporting
declarations and an attachment. ECF Nos. 25, 25-1, 25-2, 25-3, 25-4. Because Petitioners’
Response argues only against dismissal and does not protest intervention, Petitioners acquiesced
and accepted that the Nation’s limited intervention in this case pursuant to Rule 24(a) to move
for dismissal is appropriate. Thus, this Order addresses only the Tribe’s Motion to Dismiss.
2
Unless otherwise noted, all facts are drawn from the Complaint. (Doc. 1)
2

Currently, BHP is contractually obligated to supply FCPP with coal from the Navajo
Mine through early July 2016. Toward that end, BHP seeks to expand mining operations into a
portion of the existing deposits (“Area IV North”). Area IV North contains approximately 12.7
million tons of coal. Currently permitted Areas II and III of the mine contain 30.8 million tons of
coal. In 2005 the Federal Respondents approved a permit revision allowing strip-mining
operations to expand over 3,800 acres into Area IV North.This decision was based on a fourteenpage environmental assessment (EA). Diné CARE v. Klein (Diné CARE I), 676 F. Supp. 2d 1198,
1203 (D. Colo. 2009)(Kane, J.). Diné CARE and San Juan Citizens Alliance sued OSM,
alleging the EA did not comply with the procedural requirements of NEPA, 42 U.S.C. §§ 43214370h, seeking, among other things, to enjoin mining operations in Area IV North until OSM
compliance was acheived. Diné CARE I, 676 F. Supp. 2d at 1203, 1204.
As here, OSM and the intervenors moved to dismiss in Diné I on the basis of Rule 19 for
nonjoinder of the Navajo Nation. Id. at 1204. I denied the motion, see id. at 1215-17, later
ruling in the petitioners’ favor on the merits and remanding the matter to OSM to conduct a
lawful NEPA analysis. Diné CARE v. Klein (Diné CARE II), 747 F. Supp. 2d 1234, 1263-64 (D.
Colo. 2010).
On remand, OSM reduced the size of the proposed mine expansion into Area IV North
and prepared another EA. Despite Citizens submitting extensive comments advocating for a
more extensive review of environmental impacts, OSM issued a Finding of No Significant
Impact (“FONSI”) and approved the mine expansion. Citizens again sought judicial review,
bringing the instant case for declaratory relief and injunctive relief limited to future mining
operations in Area IV North. BHP again intervened as a defendant, and the Tribe then moved to

3

intervene for the limited purpose of filing their motion to dismiss. The matter has been fully
briefed and is ripe for my review.

Discussion
The Tribe is not a party to this action and cannot be joined as a result of sovereign
immunity. See Manygoats v. Kleppe, 558 F.2d 556, 558 (10th Cir.1977). Turning these
jurisdictional truths to its advantage, the Tribe asserts it is additionally an indispensable party
under FRCP 19 so that the action must be dismissed in its entirety. By this logic, virtually all
public and private activity on Indian lands would be immune from any oversight under the
government’s environmental laws. This is neither the intent nor the import of Indian sovereign
immunity.
There are three parts to a finding of indispensability under Fed. R. Civ. P. 19(b). See
Citizen Potawatomi Nation v. Norton, 248 F.3d 993, 997 (10th Cir. 2001). First, I must find that
a prospective party is “required to be joined” under Rule 19(a). Second, I must determine that the
required party cannot feasibly be joined. Then I must determine, under Rule 19(b), whether the
required-but-not-feasibly-joined party is so important to the action that the action cannot “in
equity and good conscience” proceed in that person’s absence. Fed. R. Civ. P. 19(b). When that
is so, the action “should be dismissed.” Id. The Tribe, as the proponent of this Rule 12(b)(7)
defense, has “the burden of producing evidence” showing both that the Tribe is a required party
and that dismissal is required in its absence. See Citizen Band Potawatomi Indian Tribe v.
Collier, 17 F.3d 1292, 1293 (10th Cir.1994) (proponent has burden of production, which “can be
satisfied by providing affidavits of persons having knowledge of these interests as well as other
relevant extra-pleading evidence;” internal quotation omitted).

4

It is indisputably clear the Tribe meets the “necessary” or “required” party standard for
indispensability because the Tribe receives financial and other benefits from the mine’s
operation. See Manygoats at 558. In light of the Tribe's immunity from suit, I therefore proceed
to the Rule 19(b) question of “whether, in equity and good conscience, the action should
proceed” in the Tribe's absence. Fed.R.Civ.P. 19(b). Under the Rule, I must consider the
following factors in deciding this question: (1) the extent to which a judgment rendered in the
Tribe's absence might prejudice the Tribe or the existing parties; (2) the extent to which any
prejudice could be lessened or avoided; (3) whether judgment rendered in the Tribe's absence
would be adequate; and (4) whether Plaintiffs would have an adequate remedy if the action were
dismissed for non-joinder. Fed.R.Civ.P. 19(b); Thunder Basin Coal Co. v. Southwestern Pub.
Serv. Co., 104 F.3d 1205, 1211 (10th Cir.1997).
In Manygoats, for example, the Tenth Circuit ruled the Tribe would not be prejudiced by
a judgment rendered in its absence because the requested relief, injunction of the Secretary's
approval until he complied with NEPA, did not call for any action by or against the Tribe. 558
F.2d at 558-59. The Court also found that dismissal of the action for nonjoinder of the Tribe
“would produce an anomalous result” because then “[n]o one, except the Tribe, could seek
review of [a NEPA-required] environmental impact statement covering significant federal action
relating to leases or agreements for development of natural resources on Indian lands.” Id. at 559.
This result, the court found, was not consistent with the national environmental policy set forth
in NEPA. Id. For this reason and because no known tribal remedies or procedures were available
to plaintiff, the Tenth Circuit held that “[i]n equity and good conscience the case should and can
proceed without the presence of the Tribe as a party.” Id.

5

The Tenth Circuit took a different tack in Tewa Tesuque v. Morton, 498 F.2d 240 (10th
Cir. 1974), cert. denied, *682 420 U.S. 962, 95 S.Ct. 1353, 43 L.Ed.2d 440 (1975), granting
dismissal. Tewa Tesuque is distinguishable from Manygoats, however, on at least two bases.
First, in Tewa Tesuque, plaintiffs had attacked an existing lease to which the Pueblo was a party,
whereas in Manygoats all that was sought was the enjoining of the Secretary from approving a
pending lease. In Tewa Tesuque the assault was directed at the lease; in Manygoats it was aimed
at the Secretary's approval of the lease. Second, in Manygoats, the cause of action was brought
under NEPA, whereas NEPA was not considered by the court in Tewa Tesuque.
Consideration of the two distinctions between Tewa Tesuque and Manygoats informs my
determination concerning the indispensability of the Navajo Nation here. Because this action
involves an attack on lease approvals as opposed to an attack on the leases themselves and
because this action is brought under NEPA, I find, just as I found in Diné CARE I, that the
instant action is more akin to Manygoats.
All the same, the Tribe argues sovereign immunity must be given cardinal weight in the
indispensability calculus of 19(b), declaiming Manygoats and Diné CARE I as obsolete in light
of Republic of the Philippine’s v. Pimentel, 553 U.S. 851, 863-875 (2008). Although their
argument is made earnestly, Pimentel is wholly distinguishable from the case at bar and entirely
unpersuasive for the proposition advanced by the Tribe.
Pimentel was an interpleader action, in which several parties alleged that funds were
wrongfully taken by the Republic of the Philippines’ (“Republic”) former government. 553 U.S.
at 855, 857-61, 871. When joinder was attempted by existing parties, the Republic successfully
asserted sovereign immunity and was dismissed from the action. In re Republic of the Phil., 309
F.3d 1143, 1149-52 (9th Cir.2002). The Republic then moved to dismiss as an indispensible

6

party under Rule 19, won, and the issue proceeded all the way to the Supreme Court, which
upheld the dismissal. Id. at 873.
Applying the enumerated factors of Rule 19(b) (required party status was uncontested),
the Court first reasoned that there was potentially significant prejudice to the Republic because
the suit to proceed in its absence would undermine interests in comity and the dignity between
foreign sovereigns endowed with “perfect equality and absolute independence.” Id. at 865-66
(quoting Schooner Exchange v. McFaddon, 7 Cranch 116, 137 (1812)). The Court noted the
“specific affront” of the Republic’s claimed property being “seized by the decree of a foreign
court.” Id. at 866.
The third Rule 19(b) factor also favored dismissal because the Republic would not be
bound by a judgment and presumably could bring additional litigation to recover the disputed
funds. Id. at 870-71. Regarding the fourth factor, the bank, which was the plaintiff in the
interpleader, would suffer little prejudice from dismissal because it could have any future actions
against it dismissed under Rule 19 for nonjoinder of the Republic. Id. at 871-72. Also, though
dismissal would in part harm the “international policy” of “combating public corruption,” that
international policy underscored the comity interests of foreign sovereigns. Id. Finally, the Court
noted that the balance of the equities could change if the special Philippine court tasked with
resolving ownership of properties embezzled by Marcos did not resolve the case in a “reasonable
period of time.” Id. at 859, 873.
Pimentel thus differs from the instant case in the following respects: To begin, unlike
this case and Manygoats, which both involve challenges to federal respondents’ compliance with
procedural obligations imposed by federal law, Pimentel was a dispute over property (money) to
which the absent party claimed a legal entitlement. Compare Pimentel, 553 U.S. at 866 (noting

7

the affront to the Republic of having “property they claim . . .seized by the decree of a foreign
court); with Manygoats, 558 F.2d at 558 (noting challenge was not to tribal contract but “to the
adequacy of the impact statement the Secretary must consider”). This distinction is critical
because though the Ex Parte Young exception, elaborated below, allows suits against officers of
state or tribal sovereigns for “prospective injunctive relief,” it does not allow similar suits
seeking “retroactive monetary relief.” Missouri v. Jenkins by Agyei, 491 U.S. 274, 278(1989).
Moreover, in Pimentel, an alternative forum was available in which the Republic’s claim
was being adjudicated; the Court suggested that if that forum delayed unreasonably in issuing a
decision, the parties might be able to again bring their case in United States federal court. 553
U.S. at 873. Here, though the Tribe hints at some nebulous alternative forum, it has not credibly
identified any judicial forum for review of the BLM’s NEPA analysis.
Lastly, and most vitally, Pimentel involved “foreign” sovereign immunity, raising comity
concerns between co-equal sovereigns. 553 U.S. at 866-67. Whereas United States federal law
does not apply to foreign sovereigns, “general Acts of Congress,” including NEPA, do apply on
Indian lands. Fed. Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99, 120 (1960), applied
in Davis v. Morton, 469 F.2d 593, 597-98 (10th Cir. 1972); and Manygoats, 558 F.2d at 558.
Thus, unlike “foreign” sovereign immunity, tribal sovereign immunity does not shield tribal (or
state) sovereigns from suit for prospective injunctive relief for violations of federal law. See
Tenneco Oil Co. v. Sac & Fox Tribe of Indians of Okla., 725 F.2d 572, 574-75 (10th Cir. 1984)(
named tribal officials were not protected by tribe's sovereign immunity); Burlington N. & Santa
Fe Ry. Co. v.Vaughn, 509 F.3d 1085, 1092 (9th Cir. 2007)(tribal official allegedly responsible
for administration and collection of challenged tax was not immune from suit). Accordingly, the
comity interests associated with tribal sovereign immunity, while present, are tempered here as

8

in Manygoats by the interest in full application of federal environmental law.3 See Manygoats,
558 F.2d at 559.
In fact, in the Court’s view, Manygoats and the instant lawsuit work a “public right,”
because the claims at hand derive from a federal regulatory scheme. See Stern v. Marshall, 131
S.Ct. 2594, 180 L.Ed.2d 475 (2011)(stating the Court applies a “public rights exception” to
traditional joinder rules in cases in which the claim at issue derives from a federal regulatory
scheme, or in which resolution of the claim by an expert Government agency is deemed essential
to a limited regulatory objective within the agency's authority). Where a “public right” is at
issue, traditional rules of joinder, including sovereign immunity, need not apply. See Conner v.
Burford, 848 F.2d 1441, 1460 (9th Cir. 1988)(“The appellees’ litigation against the government
does not purport to adjudicate the right of current lessees; it merely seeks to enforce the public
right to administrative compliance with the environmental standards of NEPA and the ESA.”).
As the Ninth Circuit observed in Conner, dismissing a NEPA case for nonjoinder of an
absent party “sound[s] the death knell for any judicial review of executive decisionmaking.” 848
F.2d at 1460.

Albeit without explicitly using the phrase “public rights exception,” this is the

same reasoning the Tenth Circuit employed in Manygoats when it noted it would be
“anomalous” to dismiss a NEPA case for nonjoinder of a Native American tribe because “[n]o
one, except the Tribe, could seek review of an environmental impact statement covering
significant federal action relating to leases or agreements of development of natural resources on
Indian lands.” 558 F.2d at 559.
3

To be clear, neither I nor the Citizens denigrate the doctrine of tribal sovereign immunity. It is
an important mechanism for, among other things, protecting tribes from “encroachment” by
States, Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 758 (1998), and allowing tribes
to govern internal tribal affairs, Tewa Tesuque, 489 F.2d at 243. However, these internal tribal
interests are not implicated in this lawsuit, which instead champions the shared national interest
in environmental procedural compliance.
9

After Manygoats, the Tenth Circuit went on to adopt unambiguously the public rights
exception, applying the doctrine by name. See Southern Utah Wilderness Alliance v.
Kempthorne, 525 F.3d 966, 971 n.2 (10th Cir.2008)(“We note that Movants as private lessees
were not indispensable parties to the district court proceedings because SUWA's action against
BLM fell within the “public rights exception” to joinder rules, most notably Fed.R.Civ.P.
19.”)(internal quotations omitted); Northern Arapaho Tribe v. Harnsberger, 697 F.3d 1272 (10th
Cir. 2012)(refusing to apply the public rights exception because this the claims at issue were not
“seeking to vindicate broadly applicable public rights, such as the prevention of unfair labor
practices or administrative compliance with environmental protection statutes and
regulations.”)(emphasis added). Thus, the recent district court opinions within the Tenth Circuit,
namely, United Keetoowah Band of Cherokee Indians in Oklahoma v. Kempthorne, 630
F.Supp.2d 1296, 1303-05 (E.D. Okla. 2009) and ThreeStars Production Co., LLC. V. BP
America Production Co, 2012 WL 917273 (D. Colo. 2012) upon which the Tribe relies so
heavily are inapposite. Although these decisions, citing Pimentel, all grant motions to dismiss in
favor of various Native American tribes on the ground of sovereign immunity, they are only
superficially on point. Despite that all the aforementioned do indeed involve sovereign
immunity as applied to Native American tribes, nary a one presented NEPA challenges, which
fact is significant given the policy concerns that NEPA was enacted to address.4 “NEPA is
concerned with national environmental interests. Tribal interests may not coincide with national
interests. We find nothing in NEPA which excepts Indian lands from national environmental
policy.” Manygoats 558 F.2d at 559.
4

I note Respondents also volunteer Center for Biological Diversity v. Pizarchik, 2012 WL
872622 (D. Colo. 2012), a case also involving a NEPA challenge, for the proposition that this
case must be dismissed. Pizarchik, however, in addition not to being binding authority,
specifically declined to consider the merits of the public rights exception, the court calling the
argument in that case “woefully underdeveloped.” 872622 at *7 fn. 11.
10

Applying the Rule 19(b) factors to the instant action, I find the analysis of
Manygoats controls. With respect to the first two factors concerning prejudice, I note the
Citizens challenge, as in Manygoats, not a legal entitlement of the Tribe (i.e., the lease), but
rather the Federal Respondents’ allegedly deficient NEPA analysis. If it is determined on the
merits of Citizens’ challenge that the Federal Respondents must complete an EIS, or otherwise
remedy their NEPA analysis, no prejudice will necessarily result to the Tribe, because the
requested relief does not call for any action by or against the Tribe.
As to the adequacy of the judgment, that factor too favors allowing the case to proceed.
This element reflects the interest of the public and the judicial system in “settling disputes by
wholes whenever possible.”Provident Tradesmens Bank & Trust, 390 U.S. 102, 104, quoted in
Pimentel, 553 U.S. at 870. If this case proceeds to a resolution on its merits, it will be
determined either that the Federal Respondents violated NEPA or that they did not. After that,
there will be no remaining dispute to resolve. The Tribe fails to cite any other litigation that will
be unresolved by this case. Nor is there any indication that additional litigation will occur if this
suit proceeds in the Tribe’s absence. Indeed, no additional litigation was engendered by this
Court’s previous ruling on this matter in Diné CARE I.
Finally, the fourth factor, “whether the plaintiff would have an adequate remedy if the
action were dismissed for nonjoinder,” Fed. R. Civ. P. 19(b)(4), weighs crushingly against
dismissal. As mentioned above, the Tribe has failed to show that an alternative forum capable of
granting an adequate remedy is available for the Citizens to challenge the Federal Respondents’
NEPA analysis. Nor does it appear that any such forum is available, Manygoats, 558 F.2d at 559;
Diné CARE I, 676 at 1217, for the Federal Respondents are the sole authority for issuing stripmining permits and conducting required NEPA analyses on Indian lands. 30 C.F.R. § §

11

750.6(a)(1)-(2), (7). Thus, the Citizens cannot obtain adequate relief from the Tribe. As such,
allowing the action to proceed would severely check NEPA’s policy goals and would thwart the
objectives of the public rights exception to traditional joinder rules.
The Motion to Dismiss, Doc. 22, is DENIED. The tribal/foreign government distinction
between the instant case and Pimentel is fundamental and dispositive; Manygoats controls.

DATED: January 4, 2013

BY THE COURT:
/s/ John L. Kane
Senior U.S. District Court Judge

12