Ctr. for Biological Diversity v. Pizarchik

858 F.Supp.2d 1221

CENTER FOR BIOLOGICAL DIVERSITY, Dine Citizens Against Ruining Our Environment, and San Juan Citizens Alliance, Plaintiffs,

v. Joseph PIZARCHIK, in his official capacity as Director, Office of Surface Mining Reclamation and Enforcement, Western Region Office of Surface Mining Reclamation and Enforcement, a federal agency within the U.S. Department of Interior, and Ken Salazar, in his official capacity as U.S. Secretary of Interior, Defendants,andBHP Navajo Coal Company and the Navajo Nation, Defendants–Intervenors.

Civil Case No. 11–cv–00243–REB–CBS.

United States District Court, D. Colorado.

March 14, 2012.

Amy Rae Atwood, Portland, OR, Brad A. Bartlett, Western Energy Justice Project, Durango, CO, for Plaintiffs.

John H. Martin, III, U.S. Department of Justice, Denver, CO, for Defendants.

Daniel J. Dunn, Jennifer L. Biever, Hogan Lovells U.S. LLP, Denver, CO, Deana Maria Bennett, Maria O'Brien, Walter E. Stern, III, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, NM, Patrick Dale Traylor, Hogan Lovells U.S. LLP, Washington, DC, Brian Leland Lewis, William Allen Johnson, Navajo Nation Department of Justice, Window Rock, AZ, for Defendants–Intervenors.

ORDER GRANTING MOTION TO DISMISS

BLACKBURN, District Judge.

The matter before me is The Navajo Nation's Amended Motion To Dismiss [# 47] ¹ filed June 14, 2011. I grant the motion.

I. JURISDICTION

I have subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal question).

II. STANDARD OF REVIEW

Intervenor The Navajo Nation (“Nation”) seeks to dismiss plaintiff's complaint under Fed.R.Civ.P. 12(b)(7) for failure to join a required party, namely the Nation, under Fed.R.Civ.P. 19. A party seeking dismissal for failure to join bears the burden of persuasion. Lenon v. St. Paul Mercury Insurance Co., 136 F.3d 1365, 1372 (10th Cir.1998).

Determining whether a party is required under Rule 19 involves a two-step analysis. Sierra Club v. Young Life Campaign, 176 F.Supp.2d 1070, 1077 (D.Colo.2001). First, the court determines whether the party is “required,” as that term is defined by the rule:

A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:

(A) in that person's absence, the court cannot accord complete relief among existing parties; or

(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may:

(i) as a practical matter impair or impede the person's ability to protect the interest; or

(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.

Fed.R.Civ.P. 19(a)(1). If the absent party meets one of these two standards, it must be joined “if feasible.” Fed.R.Civ.P. 19(a)(2).

If joinder is not feasible, such as when the required party enjoys immunity from suit, see Citizen Potawatomi Nation v. Norton, 248 F.3d 993, 997 (10th Cir.2001), modified on other grounds on reh'g en banc,257 F.3d 1158 (10th Cir.2001), “the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed,” Fed.R.Civ.P. 19(b). Rule 19(b) enumerates four factors that should be considered in determining whether to proceed:

(1) the extent to which a judgment rendered in the person's absence might prejudice that person or the existing parties;

(2) the extent to which any prejudice could be lessened or avoided by:

(A) protective provisions in the judgment;

(B) shaping the relief; or

(C) other measures;

(3) whether a judgment rendered in the person's absence would be adequate; and

(4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.

Fed.R.Civ.P. 19(b)(1)-(4).

The Rule 19(b) factors are neither exclusive nor dispositive. “The design of the Rule ... indicates that the determination whether to proceed will turn upon factors that are case specific, which is consistent with a Rule based on equitable considerations.” Republic of the Philippines v. Pimentel, 553 U.S. 851, 862–63, 128 S.Ct. 2180, 2188, 171 L.Ed.2d 131 (2008). See also Davis v. United States, 192 F.3d 951, 961 (10th Cir.1999) (“The nature of the Rule 19(b) inquiry-a weighing of intangibles-limits the force of precedent and casts doubt on generalizations.”) (citation and internal quotation marks omitted). Thus, a determination under Rule 19 will be “based on factors varying with the different cases, some such factors being substantive, some procedural, some compelling by themselves, and some subject to balancing against opposing interests.” Pimentel, 128 S.Ct. at 2189 (quoting Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 119, 88 S.Ct. 733, 743, 19 L.Ed.2d 936 (1968)) (internal quotation marks omitted).

III. ANALYSIS

Pursuant to the Surface Mining Control and Reclamation Act (“SMCRA”), 30 U.S.C. §§ 1201–1328, the Office of Surface Mining Reclamation and Enforcement (“OSM”) is responsible for issuing permits for the operation of coal mines on tribal lands. On September 7, 2010, the OSM granted intervenor BHP Navajo Coal Company (“BNCC”) a five-year right of renewal of its permit to operate the Navajo Mine, which is located entirely within the boundaries of the Navajo Reservation. BNCC holds a leasehold interest in the mine pursuant to a long-standing mining lease with the Nation.

Plaintiffs allege that defendants failed to consult with the United States Fish and Wildlife Service (“FWS”) to consider the effect of mining operations on threatened or endangered species, as required by section 7(a)(2) of the Endangered Species Act of 1973 (“ESA”), 16 U.S.C. § 1536(a)(2), and its implementing regulations, 50 C.F.R. Part 400. They ask the court to declare defendants' approval of the renewal permit unlawful, set aside the renewal permit, and enjoin further coal mining activities at the Navajo Mine until such time as defendants fully comply with the ESA.

The Nation and BNCC sought and were granted leave to intervene in this action for the limited purpose of bringing the instant motion to dismiss. ( SeeCourtroom Minutes/Minute Order [# 58], filed July 7, 2011.) They maintain that this action must be dismissed because the Nation is a required party but cannot be joined as a result of its sovereign immunity. Under the prevailing standards set forth above, and, a fortiori, in light of the heavy weight to be afforded a sovereign's assertion of its immunity in these circumstances, I concur, and, therefore, grant the motion.

“Indian tribes are distinct, independent political communities, retaining their original natural rights in matters of local self-government. Although no longer possessed of the full attributes of sovereignty, they remain a separate people, with the power of regulating their internal and social relations.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55, 98 S.Ct. 1670, 1675, 56 L.Ed.2d 106 (1978) (internal citationsand quotation marks omitted). Accordingly, the Nation enjoys sovereign immunity, which has neither been abrogated by Congress nor waived in this instance.²See Kiowa Tribe of Oklahoma v. Manufacturing, 523 U.S. 751, 754, 118 S.Ct. 1700, 1702, 140 L.Ed.2d 981 (1998). As a consequence, it cannot be joined in this lawsuit. See Manygoats v. Kleppe, 558 F.2d 556, 558 (10th Cir.1977); Dine Citizens Against Ruining Our Environment v. Klein, 676 F.Supp.2d 1198, 1215 (D.Colo.2009).

The first question the court must answer, then, is whether the Nation is a required party pursuant to Fed.R.Civ.P. 19(a)(1)(B)(i), that is, whether it “claims an interest relating to the subject of the action and is so situated that disposing of the action in [its] absence may ... as a practical matter impair or impede [its] ability to protect the interest.” ³ Under this rule, the court need not—indeed, must not—consider the merits of the absent party's asserted interest. “ Rule 19, by its plain language, does not require the absent party to actually possess an interest; it only requires the movant to show that the absent party claims an interest relating to the subject of the action.” Citizen Potawatomi Nation, 248 F.3d at 998 (quoting Davis, 192 F.3d at 958) (internal quotation marks omitted; emphases in original). So long as that interest is neither “fabricated nor frivolous,” it is not excluded from consideration under Rule 19(a). Davis ex rel. Davis v. United States, 343 F.3d 1282, 1289 (10th Cir.2003), cert. denied,542 U.S. 937, 124 S.Ct. 2907, 159 L.Ed.2d 812 (2004).

The Nation has presented substantial evidence supporting its claimed economic interests in this lawsuit. It has offered the declaration of Charles J. Cicchetti, Ph.D., an economist and professor of economics, to substantiate the nature and extent of these interests.⁴ Dr. Cicchetti notes that in 2007, the Navajo Mine paid nearly $39 million in royalties and taxes to the Nation, constituting some 24 percent of the Nation's internal budget for the year. He suggests that cessation of operations at the mine could result in a loss of royalty revenue of some $33 million, roughly 17 percent of the Nation's gross revenue from internal sources in 2008. The Nation also receives significant direct and indirect tax revenue from the operation of the Navajo Mine that would be lost if operation ceases.

In addition, Dr. Cicchetti points out that the Navajo Mine is one of the Nation's largest single employers, employing more than 400 workers, the vast majority of whom are members of the Nation. In an area where unemployment hovers above 50 percent, and nearly 37 percent of the population lives below the poverty level, these relatively well-paying jobs ⁵ account for 7.63 percent of the total income, salary, and benefits earned on the reservation. The Navajo Mine also supports other jobs in the local economy that would be adversely impacted if it...