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.

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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”

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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.

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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

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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

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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

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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.

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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

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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.

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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

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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.

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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:

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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

53

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)).

54

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).

55

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

56

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.

57

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

58

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

59

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

60

“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

61

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

62

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

63

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

64

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

65

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.