Nakayama et al v. Sanders et al

Filing 36

ORDER ADOPTING MARCH 21, 2017 RECOMMENDATION OF THE MAGISTRATEJUDGE AND GRANTING DEFENDANTS' MOTION TO DISMISS. ORDERED: 1. Plaintiffs' Objection 33 is OVERRULED; 2. Defendants' Motion to Dismiss 20 is GRANTED; 3. Pl aintiffs' Motion for Preliminary Injunction 9 Is DENIED AS MOOT; 4. Plaintiffs' Count One is DISMISSED WITH PREJUDICE and the remaining counts in Plaintiffs' complaint are DISMISSED WITHOUT PREJUDICE; and 5. The Clerk shall terminate this action. The parties shall bear their own costs, by Judge William J. Martinez on 6/7/2017. (dhans, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 17-cv-0285-WJM-NYW
KAREN NAKAYAMA, and
ROBERT BRIDGES,
Plaintiffs,
v.
JENNIFER L. SANDERS, and
CODY K. SANDERS,
Defendants.

ORDER ADOPTING MARCH 21, 2017 RECOMMENDATION OF THE MAGISTRATE
JUDGE AND GRANTING DEFENDANTS’ MOTION TO DISMISS

This is a dispute between adjacent private landowners who live within the
boundaries of the Southern Ute Indian Reservation in southwestern Colorado. Plaintiffs
claim that Defendants’ coal-fired boiler sends harmful pollutants across Plaintiffs’
property. (ECF No. 1.) Plaintiffs have sued under the Clean Air Act, 42 U.S.C. §§ 7401
et seq., as well as under common law theories such as nuisance and invasion of
privacy. Plaintiffs moved for a preliminary injunction (ECF No. 9), which the
undersigned referred to U.S. Magistrate Judge Nina Y. Wang (ECF No. 11).
Before Judge Wang could hold a hearing on the request for a preliminary
injunction, Defendants raised what they characterized as a question of subject matter
jurisdiction. Because Plaintiffs and Defendants are both Colorado residents, federal
court jurisdiction turns on the viability of Plaintiffs’ Clean Air Act claim. Plaintiffs ground
their Clean Air Act claim entirely in an opacity standard promulgated by the State of

Colorado under its authority from the federal Environmental Protection Agency (“EPA”)
to carry out the mandates of the Clean Air Act. (ECF No. 1 ¶¶ 21–27, 37–42.)
Defendants filed a motion to dismiss, however, arguing that the Southern Ute Tribe has
exclusive jurisdiction over emissions standards from sources located within the
Reservation’s borders, and that the Tribe has no opacity standard similar to Colorado’s.
(ECF No. 20.)
Considering Judge Wang’s familiarity with the case, the undersigned referred
this motion to her for a recommendation. (ECF No. 23.) After briefing and oral
argument (including an amicus brief and oral argument from the Southern Ute Tribe
itself), Judge Wang issued her recommendation on March 21, 2017, recommending
that Defendants’ motion be granted (“Recommendation”). (ECF No. 32.) Plaintiffs then
filed a timely objection under Federal Rule of Civil Procedure 72(b)(2) (ECF No. 33),
which is presently before the Court.
Given this posture, Rule 72(b)(3) requires that the Court “determine de novo any
part of the magistrate judge’s [recommendation] that has been properly objected to.”
An objection to a recommendation is properly made if it is both timely and specific.
United States v. One Parcel of Real Prop. Known as 2121 East 30th St., 73 F.3d 1057,
1059 (10th Cir. 1996). An objection is sufficiently specific if it “enables the district judge
to focus attention on those issues—factual and legal—that are at the heart of the
parties’ dispute.” Id. (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). In conducting
its review, “[t]he district court judge may accept, reject, or modify the recommendation;
receive further evidence; or return the matter to the magistrate judge with instructions.”
Id.
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The undersigned cannot improve on Judge Wang’s thorough recitation of the
relevant facts and statutory background, nor on her careful analysis of the statutory and
regulatory questions presented. Familiarity with the Recommendation is therefore
presumed and the Court turns directly to Plaintiffs’ two bases for objection.
First, Plaintiffs argue that if Colorado’s opacity standard does not apply on the
Southern Ute Reservation, it would “leave broad categories of polluting activities
completely unregulated and Plaintiffs without protection or remedy under the [Clean Air
Act]. Such [a] gap was not Congress’[s] intent under the [Clean Air Act] . . . .” (ECF
No. 33 at 3.) This objection is without foundation for at least two reasons. First, the
Clean Air Act itself does not dictate any opacity standard, or even that states and tribes
must have an opacity standard. Second, Plaintiffs are not without any remedy: the
presence or absence of an opacity standard has no bearing on their ability to bring a
nuisance action or other similar actions under the common law.
Second, Plaintiffs argue that the Intergovernmental Agreement (“IGA”)
establishing the Tribe’s sole jurisdiction over air quality standards within the
Reservation, see Colo. Rev. Stat. § 24-62-101, is ambiguous. (ECF No. 33 at 6.) But
Plaintiffs do not specify what they believe to be ambiguous. From the context, it
appears Plaintiffs may be referring to slight differences between the definitions of
“Development Phase” and “Program Phase” in the IGA. Specifically, the IGA defines
Development Phase, in part, as “the time period . . . before . . . delegation by the EPA
of any Clean Air Act programs [to the Tribe]”; whereas it defines Program Phase, in
part, as “the time period . . . after . . . actual delegation of Clean Air Act Programs by
the EPA [to the Tribe].” Colo. Rev. Stat. § 24-62-101, art. V, §§ B & C. the
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Development Phase definition contains the word “any” before “Clean Air Act Programs,”
while the Program Phase definition does not. And “any” was a keyword on which Judge
Wang relied in her analysis. (ECF No. 32 at 18.) Plaintiffs seem to be saying that the
Development Phase ends with the delegation of any particular Clean Air Act program to
the Tribe, but the Program Phase does not begin until the EPA delegates all Clean Air
Act programs to the Tribe. That is not what the IGA says, however, and—as Judge
Wang cogently observed—Plaintiffs’ interpretation creates more ambiguity: “To read
[‘all’] into the definition of Program Phase would necessarily create an undefined gap
following the delegation of a single [Clean Air Act] program (i.e., after the Development
Phase) but before the delegation of all [Clean Air Act] programs (i.e., the beginning of
the Program Phase).” (ECF No. 32 at 19.) Thus, this objection is unfounded, and the
Court agrees that Plaintiffs’ Clean Air Act claim must be dismissed.
Judge Wang further recommends that the Court not retain jurisdiction over
Plaintiffs’ state law claims. (ECF No. 32 at 21 (citing, among other things, 28 U.S.C.
§ 1367(c)(3) and Wittner v. Banner Health, 720 F.3d 770, 781 (10th Cir. 2013)).)
Whether the Court may even consider retaining jurisdiction depends on whether the
lack of an applicable opacity standard is a jurisdictional defect (i.e., it deprives Plaintiffs
of the citizen-suit remedy under the Clean Air Act, thus eliminating the statutory basis
for a private suit in federal court, see ECF No. 20 at 2–3) or a merits defect (i.e., it
simply shows that Plaintiffs’ citizen suit fails on its elements, see ECF No. 26 at 3–4).
Judge Wang did not directly address this distinction, but her Recommendation that the
Court exercise its discretion to dismiss the state law claims shows that she adopted the

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merits defect view.
The Court agrees with Judge Wang. In the past couple of decades, the
Supreme Court has repeatedly cautioned lower courts to treat the label “jurisdictional”
carefully and only apply it when Congress clearly intended some sort of statutory
mechanism to have jurisdictional consequences. See, e.g., Arbaugh v. Y & H Corp.,
546 U.S. 500, 511 (2006). The Court is not persuaded that a Clean Air Act citizen suit
based on what turns out to be an inapplicable air quality standard means that the Court
lacked subject matter jurisdiction from the outset. Thus, Plaintiffs’ Clean Air Act claim
fails on its merits, and the Court agrees with Judge Wang that retaining jurisdiction over
Plaintiffs’ state law claims would be inappropriate given the relatively early stage of
these proceedings, as well as the geographic remoteness of this courthouse to the
parties, their properties, and most of the likely witnesses and evidence. “[T]o the extent
that Plaintiffs intend to proceed on their state law claims against Defendants, it appears
more appropriate for such claims to be adjudicated in a state court that is
geographically proximate to the Parties.” (ECF No. 32 at 21.)
For the reasons set forth above the Court ORDERS as follows:
1.

Plaintiffs’ Objection (ECF No. 33) is OVERRULED;

2.

Defendants’ Motion to Dismiss (ECF No. 20) is GRANTED;

3.

Plaintiffs’ Motion for Preliminary Injunction (ECF No. 9) is DENIED AS MOOT;

4.

Plaintiffs’ Count One is DISMISSED WITH PREJUDICE and the remaining
counts in Plaintiffs’ complaint are DISMISSED WITHOUT PREJUDICE; and

5.

The Clerk shall terminate this action. The parties shall bear their own costs.

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Dated this 7th day of June, 2017.
BY THE COURT:

William J. Martínez
United States District Judge

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