Amicus Curiae Brief — El Paso Natural Gas Co. v. Neztsosie

NOV & 196

No. 98-6 |

In the Supreme Court of the United States

OCTOBER TERM, 1998

EL PASO NATURAL GAS COMPANY, ET AL.,

PETITIONERS

5.

LAURA NEZTSOSIE, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING REVERSAL

JOHN D. LESHY

Solicitor

Department of the Interior

Washington, D.C. 20240

MARY ANNE SULLIVAN

General Counsel

Department of Energy

Washington, D.C. 20585

JOHN F. CORDES

Solicitor

Nuclear Reguiatery

Commission

Washington, D.C. 20555

SETH P. WAXMAN

Solicitor General

Counsel of Record

Lois J. SCHIFFER

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

JONATHAN E. NUECHTERLEIN

Assistant to the Solicitor

General

MARTIN W. MATZEN

ETHAN G. SHENKMAN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the tribal exhaustion doctrine bars prompt

federal court consideration of whether claims initially

brought under tribal law in tribal court fall within the com-

pletely preemptive scope of the Price-Anderson Act.

2. Whether the court of appeals erred when it vacated

the district court’s preliminary injunction barring respon-

dents from “seekling] relief under the Price-Anderson Act in

tribal court” (J.A. 73a), even though respondents had filed no

cross-appeal challenging that injunction.

TABLE OF CONTENTS

Interest of the United States

Statement

Introduction and summary of argument

Argument:

A. The tribal exhaustion doctrine bars premature

federal intervention in tribal court adjudication

of ordinary preemption defenses

B. The exhaustion doctrine does not bar a federal

court from determining, in the first instance, the

effect of the Price-Anderson Act's complete pre-

emption scheme on actions pending in tribal

court

C. Respondents’ tribal law claims fall within the

preemptive scope of the Price-Anderson Act

Conclusion

TABLE OF AUTHORITIES

Cases: .

Becenti v. Vigil, 902 F. 2d 777 (10th Cir. 1990)

Boys Markets, Inc. v. Retail Clerks Union, 398

U.S. 235 (1970)

Brogan v. United States, 118 S. Ct. 805 (1998

Budinich v. Becton Dickinson & Co., 486 US.

196 (1988)

Caterpillar Inc. v. Williams, 482 U.S. 386

(1987)

Cincinnati Radiation Lit., In re, 874 F. Supp.

796 (S.D. Ohio 1995)

Duke Power Co. v. Carolina Envtl. Study Group,

Inc., 438 U.S. 59 (1978)

Franchise Tax Bd. v. Construction Laborers

Vacation Trust, 463 U.S. 1 (1983)

(IIT)

ee

13

8 N

14. 15

14

IV

Cases—Continued:

Page

Gassie v. SMH Swiss Corp., No. Civ. A 97-3557,

1998 WL 71647 (E.D. La. Feb. 17, 1998) 30

30

18

Gilberg v. Stepan Co., No. Civ. A 98-139, 1998 WL

565978 (D.N.J. Aug. 20, 1998)

Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S.

473 (1981)

lowa Mut. Ins. Co. v. LaPlante, 480 U.S.9

(1987) 8, 9, 10, 11, 16, 17, 21, 22, 25

Johnson v. Teamsters Local 559, 102 F 3d 21

(Ist Cir. 1996) 21

Kennerly v. District Court, 400 U.S. 423 (1971) .............. 8

Kerr-McGee Corp. v. Farley, 115 F.3d 1498

(10th Cir. 1997), cert. denied, 118 S. Ct. 880

(1998) 30

Kerr-McGee Corp. v. Navajo Tribe, 471 U.S. 195

(1985) 8-9

Kiick v. Metropolitan Edison Co., 784 F.2d 490

(3d Cir. 1986) 17

Lane v. Petia, 518 U.S. 187 (1996) 29

Langnes v. Green, 282 U.S. 531 (1981) 20

Massachusetts Mut. Life Ins. Co. v. Ludwig,

426 U.S. 479 (1976) 20-21

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130

(1982) .... 8, 9, 22, 24

Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58

(1987) 13, 14, 15, 27

Middlemist v. Babbitt, 19 F.3d 1318 (9th Cir.),

cert. denied, 513 U.S. 961 (1994) 10

Montana v. United States, 450 U.S. 544 (1981) 11

Morley Constr. Co. v. Maryland Cas. Co.,

300 U.S. 185 (1987) 21

National Farmers Union Ins. Cos. v. Crow Tribe,

471 U.S. 845 (1985) passim

Nieman v. NLO, Inc., 108 F.3d 1546 (6th Cir.

1997) 18

Cases—Continued:

Northeast Ohio Reg Sewer Dist. v. Advanced

Med. Sys., Inc., 666 N.E.2d 612 (Ohio Ct. App.

1995)

Northern States Power Co. v. Prairie Island

Mdewakanton Sioux Indian Community, 991

F. 2d 458 (8th Cir. 1998)

O'Conner v. Commonwealth Edison Co., 13 F 3d

1090 (7th Cir. 1994), cert. denied, 512 U.S. 1222

(1994)

Oneida Indian Nation v County of Oneida, 414 U.S.

661 (1974)

Pacific Gas & Elec. Co. v. State Energy Resources

Conserv. & Dev. Comm'n, 461 U.S. 190 (1983)

Phillips Petroleum Co. v. Shutts, 472 U.S. 797

(1985)

Reservation Tel. Coop. v. Three Affiliated

Tribes of the Fort Bethold Reservation, 76 F 3d 181

(8th Cir. 1996)

Richards v. United States, 369 U.S. 1 (1962)

Roberts v. Florida Power & Light Co., 146 F 3d

1305 (11th Cir. 1998), petition for cert. pending,

No. 98-640

Santa Clara Pueblo v. Martinez, 436 U.S. 49

(1978)

Silkwood v. Kerr-McGee Corp., 464 U.S. 238

(1984)

Spann v. Colonial Village, Inc., 899 F.2d 24

(D.C. Cir. 1990)

Stibitz v. General Pub. Utils. Corp., 746 F.2d

993 (3d Cir. 1984), cert. denied, 469 U.S. 1214

(1985)

Strate v. A-1 Contractors, 520 U.S. 438 (1997) ccc.

18

14

17

6, 8,

11, 12, 13, 20

vi VI

— Page Statutes and rules Continued: Page

TMI Litig. Cases Consol. II. In re, 940 F 2d 832 ey —— se —

(3d Cir, 1991), cert. denied, 508 U.S. 906 (1902) . . 17, 18, 7 — 3.19,

19, 22, 28 42 U.S.C. 21000) 3

— * Oakland Scavenger Co., 487 U.S. 312 * 42 U.S.C. 2210(n) 3, 23

8 42 U.S.C. 2210(n)(1) 3, 19

United States v. American Ry. Express Co., 42 U.S.C. 22100) 3. 15, 17, 22, 24, 26, 28

265 U.S. 425 (1924) 20, 21 42 U.S.C. 2210(n\(3) 3, 26, 28

United States v. Plainbull, 957 F.2d 724 (9th Cir. 42 U.S.C. 22100 28

1992) 10 42 U.S.C. 2210(n)(3)( Ai) 28

United States v. Yakima Tribal Court, 806 F.2d — 2 anni . —

853 (9th Cir. 1986), cert. denied, 481 U.S. 1069 221000

— 25 42 U.S.C. 221008) 3. 19, 29

Williams v. Lee, 358 U.S. 217 (1959) 8, 10 — en One +

Young Radiator Co. v. Celotex Corp., 881 F.2d Indian 2 Justice Act, Pub. L. No. 108.176.

1408 (7th Cir. 1989) 21 107 Stat. 2004 9

Constitution, statutes and rules: : — — 1 ——

) 36016)

U.S. Const. Art. III 18

Atomie Energy Act of 1954, as amended by the Price- B 2 Management Relations Act, § 301, 29 U.S.C. %

Anderson Act, 42 U.S.C. 2011 et seq. 1 Outer Continental Shelf Lands Act, 43 U.S.C. 1331

42 U.S.C. 2011 note ,

N 2 et Sc.

— — : § 4(a)(2), 43 U.S.C. 1333(a)(2) 18

— 3 17 923. 43 U.S.C. 1349(b\(1) 18

42 U.S.C. 2014()) Price-Anderson Amendments Act of 1988, Pub. L. No

CULL. ty tama 100-408, 102 Stat. 1066 .

42 U.S.C. 2014(t) .

42 U.S.C. 2014(w) 2, 7, 15, 26, 28 Radiation Exposure Compensation Act, Pub. L.

— No. 101-426, 6 5, 104 Stat. 922 (42 U.S.C. 2210

42 U.S.C. 2014(z) 2.9 note) 4

42 U.S.C. 2014(hh) * r rA 3

42 U.S.C. 2073 :

28 U.S.C. 1441 25

2 28 U.S.C. 1442(a)(1) (Supp. II 1996) 25

42 U.S.C. 2111 28 U.S.C. 1446(d) 15, 25

42 U.S.C. 2131 et seq. 2 Fed. R 1 P. 4 0( 21

42 U.S.C. 2210 passim oon he —

42 U.S.C. 2210(a) pace

2

42 U.S.C. 2210(b) 2

42 U.S.C, 2210(c) 2,29

Vill

In the Supreme Court of the United States

Miscellansous: Page OCTOBER TERM, 1998

H.R. Conf. Rep. No. 383, 108d Cong., Ist Sess.

— icine 9 No. 98-6

we No. 104, 100th Cong., Ist Sess. 3 EL PASO NATUPAL GAS COMPANY, ET AL., PETITIONERS

S. Rep. No. 296, 85th Cong., Ist Sess. (1957)... 28. 29 U.

S. Rep. No. 218, 100th Cong., Ist 8 — LAURA NEZTSOSIE, ET AL.

18-19,

S. Rep. No. 88, 108 Cong. Ist Sess. (1998) 9, 10, 22 ON WRIT OF CERTIORARI

| 10 THE UNITED STATES COURT OF APPEALS

= — — 9 et al., Federal Practice and Procedure ss FOR THE NINTH CIRCUIT

du — . vv .

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING REVERSAL

INTEREST OF THE UNITED STATES

The Secretary of Energy and the Nuclear Regulatory

Commission (NRC) have responsibility for implementation

— of the Atomic Energy Act of 1954, of which the Price-Ander-

son Act is a part, and the United States has an interest in

the efficient and equitable adjudication of nuclear liability

claims. The United States also has an interest in the effec-

tiveness of Indian tribal courts. See note 4, infra.

STATEMENT

1. The Atomic Energy Act of 1954, 42 U.S.C, 2011 et seg.

comprehensively regulates “the possession, use, and produc-

tion of atomic energy and special nuclear material” for a

range of military and commercial purposes, including the

provision of nuclear power. 42 U.S.C. 2013(c).' In 1957, Con-

Congress initially gave the Atomic Energy Commission (AEC) ex-

clusive jurisdiction to license the transfer, delivery, receipt, acquisition,

possession, and use of nuclear materials.” Pacific Gas & Elec. Co. v. State

Energy Resources Conserv. & Dev. Comm'n, 461 U.S. 190, 207 (1983); see

42 U.S.C, 2011 et seq. Congress has since transferred the responsibilities

of that agency to the newly formed Nuclear Regulatory Commission and

Department of Energy. 42 U.S.C. 2011 note.

(1) —

2

gress passed the Price-Anderson Act (Act), Pub. L. No. 85-

256, 71 Stat. 576, as an amendment to the Atomic Energy

Act. A major purpose of the Price-Anderson Act is to regu-

late the terms on which private industry may be held liable

to members of the public for its role in the development of

the Nation’s atomic energy program. See 42 U.S.C. 2012(i);

see generally Duke Power Co. v. Carolina Envtl. Study

Group, Inc., 438 U.S. 59, 63-67 (1978).

As amended over the years, the Price-Anderson Act es-

tablishes a system of private insurance, industry-wide finan-

cial support, and government indemnity to satisfy potential

- claims of “public liability,” defined (with certain exceptions

inapplicable here) as “any legal liability arising out of or re-

sulting from a nuclear incident or precautionary evacuation.”

42 U.S.C. 2014(w). The Act expansively defines “nuclear

incident” to include “any occurrence, including an extra-

ordinary nuclear occurrence, causing bodily injury,

sickness, disease, or death, or loss of or damage to property,

or loss of use of property, arising out of or resulting from the

radioactive, toxic, explosive, or other hazardous properties

of source, special nuclear, or byproduct material.” 42 U.S.C.

2014(q). “Source material” includes uranium and uranium

ore. 42 U.S.C. 2014(z).

The Atomic Energy Act establishes a comprehensive li-

censing and contracting scheme for industrial and other uses

of nuclear materials. See, e.g., 42 U.S.C. 2073, 2093, 2111,

2131 et seq., 2210(a)-(d). In turn, the Price-Anderson Act

requires certain licensees (mainly those operating nuclear

reactors), and authorizes the NRC to require other licensees,

to maintain a specified amount of insurance from private

sources. 42 U.S.C. 2210(a) and (b). The Act provides that

the government will enter into indemnification agreements

with certain licensees, both to ensure compensation for

claims in the event that liability awards exceed the amount

made available by private means, 42 U.S.C. 2210(c), and to

channel all financial liability to the licensees, 42 U.S.C.

3

2014(t). The Act further establishes an aggregate limit on

liability arising from a single “nuclear incident” in contexts

where indemnification agreements are required, 42 U.S.C.

2210(e); bans any award of punitive damages in those con-

texts, 42 U.S.C. 2210(s); and, if aggregate liability exceeds

the statutory limit for a particular nuclear incident, provides

mechanisms to obtain additional funding and distribute it

equitably, 42 U.S.C. 2210(e)(2), (i), and (0). The Act provides

special liability rules for cases involving an “extraordinary

nuclear occurrence,” see 42 U.S.C. 2014(j), generally requir-

ing defendants to waive certain defenses relating, inter alia,

to fault and statutes of limitation. 42 U.S.C. 2210(n)(1).

In the Price-Anderson Amendments Act of 1988, Pub. L.

No. 100-408, 102 Stat. 1066, Congress responded to serious

litigation problems arising from the 1979 accident at the

Three Mile Island nuclear power plant. See pp. 17-18, infra.

The 1988 amendments provide, among other things, that

“any suit asserting public liability” under any source of law

“shall be deemed to be an action arising under” the Price-

Anderson Act itself. 42 U.S.C. 2014(hh). They establish

original and removal jurisdiction over such causes of action

in the federal district courts, 42 U.S.C. 2210(n) and (o); pro-

vide mechanisms for consolidating claims arising from a

single incident and for coordinating the orderly distribution

of compensatory funds, 42 U.S.C. 2210(n)(2) and (3); and

otherwise enable the federal courts to “encourage the equit-

able, prompt, and efficient resolution of cases arising out of

the nuclear incident,” 42 U.S.C. 2210(n\(3)(C)(vi).

2. Respondents are members of the Navajo Nation who

have filed separate suits in Navajo tribal court alleging that,

between the mid-1940s and the 1960s, petitioners (or their

corporate affiliates) conducted tortious uranium mining ac-

tivities on tribal lands leased from the Tribe. J.A. 76a-77a;

4

87a-88a n.5. Respondents based their suits on theories of

liability under tribal law. See Pet. 2-3; J. A. 8la. Petitioners

moved in Navajo trial court to have the suits dismissed on

jurisdictional grounds, and the motions were denied. See,

e.g., J. A. 63a-64a. Petitioners then filed these actions against

respondents in the United States District Court for the

District of Arizona, seeking declaratory and injunctive relief

against further proceedings in tribal court. Pet. 2-4.

In November 1996, the district court entered separate

orders providing essentially the same relief in each case. See

J. A. 68a-73a. The court denied petitioners’ application for a

preliminary injunction, “except to the extent that [respon-

dents] seek] relief under the Price-Anderson Act in tribal

court.” J. A. 73a; see also J. A. 69a (“The Court does grant [El

Paso's] requested relief to the extent that it enjoins [respon-

dents] from pursuing a Price-Anderson Act complaint in

tribal Court.), 71a (similar). The district court expressed no

view concerning “whether or not the provisions of the [Act]

have any application to the claims asserted by [respondents]

in tribal court.“ J. A. 71a, 73a.

Petitioners filed a notice of appeal, but respondents did

not, despite the preliminary injunction entered against them.

A divided panel of the Ninth Circuit held that the tribal

court exhaustion rule announced in National Farmers

Union Insurance Cos. v. Crow Tribe, 471 U.S. 845 (1985),

compelled the district court to stay its hand until after the

Navajo court system had completed its inquiry into its ju-

2 Petitioners claim, and respondents appear not to dispute, that those

activities were conducted under a license and contract with the AEC to

supply uranium to the government. Pet. 2. Petitioners had entered into

no indemnification agreements with the government. Pet. 10 n.9. In 1990,

Congress created a federally administered fund to compensate, inter alia,

certain persons employed in uranium mining in the Southwest between

1947 and 1971. Radiation Exposure Compensation Act, Pub. L. No. 101-

426, § 5, 104 Stat. 922, 42 U.S.C. 2210 note. That legislation has no bearing

on the questions presented here.

5

risdiction over respondents’ claims. See J.A. 92a. As relief,

the majority not only affirmed the district court’s refusal to

enjoin respondents’ prosecution of tribal law claims in tribal

court, but also dissolved the injunction prohibiting them

from pursuing Price-Anderson claims in that court, despite

respondents’ failure to challenge that injunction. Ibid.

Judge Kleinfeld dissented, reasoning: “Because (1) it is law

of the case, not appealed, that the tribal court lacks juris-

diction over Price-Anderson claims, and (2) there are no

claims that can be made that are not Price-Anderson claims,

it necessarily follows that (3) there are no claims that can be

made in tribal court.” J.A. 95a.

INTRODUCTION AND SUMMARY OF ARGUMENT

This case implicates three separate issues. First, may the

federal courts promptly resolve the parties’ threshold dis-

pute about whether respondents’ tort claims fall within the

preemptive scope of the Price-Anderson Act, even though

that same dispute is currently presented in the tribal court

proceedings (see J.A. 63a-64a)? Second, if the federal courts

may conduct that threshold inquiry, do respondents’ claims

in fact fall within the Act’s preemptive scope, such that they

are “deemed to be [claims] arising under” the Act itself (42

U.S.C. 2014(hh))? Third, if respondents’ claims do fall within

that scope and are thus deemed to arise under the Act,

should the federal courts enjoin the tribal court proceedings

on the ground that tribal courts may not adjudicate Price-

Anderson claims over the objection of the defendant? Only

the first of those questions is properly before this Court.

1. The tribal exhaustion requirement of National Far-

mers Union Insurance Cos. v. Crow Tribe, 471 U.S. 845

(1985), does not bar prompt federal court review of whether

a claim brought initially under tribal law in tribal court falls

within the preemptive scope of the Price-Anderson Act. The

reason is specific to the Act itself. Tribal courts retain broad

jurisdiction over cases involving “nonmember conduct on

6

tribal land,” Strate v. A-1 Contractors, 520 U.S. 438, 454

(1997), as distinguished from cases involving nonmember

conduct on reservation lands alienated to non-Indians. The

uranium mining at issue here occurred on tribal lands and

thus falls within the heartland of tribal jurisdiction over

“nonmember conduct.” Ibid. The proper focus of this case,

therefore, is not on the non-Indian identity of petitioners,

but on the peculiar subject matter of respondents’ claims.

Ordinarily, the plaintiff is master of what jurisdiction he

will appeal to. A plaintiff is entitled to a state forum for the

adjudication of most claims arising under state law, even

where the defendant contends that federal law preempts

those claims. A similar approach is warranted when a plain-

tiff chooses a tribal forum for the adjudication of claims

arising under tribal law. A tribal court is competent to de-

cide standard preemption defenses, and the exhaustion doc-

trine protects the federal courts from premature involve-

ment in many ordinary disputes pending in tribal court.

The general rule making a plaintiff the master of his claim

is, however, subject to an important exception, known as

“complete preemption.” Congress occasionally deems a de-

fined class of common-law claims to be claims arising under

federal law and entitles the defendant to choose a federal

forum—not just for the ultimate adjudication of such claims

on the merits, but also for the threshold inquiry into whether

particular claims fall within the preempted class. The Price-

Anderson Act js such a scheme. If respondents had sued in

state court, therefore, petitioners would have been entitled

to a federal forum for immediate resolution of whether re-

spondents’ tort claims fall within the class of claims “deemed

to * * * aris{e] under” the Act. 42 U.S.C. 2014(hh). The

specific and important statutory objectives underlying that

guarantee of immediate federal court review take prece-

dence over the usual exhaustion requirement and entitle a

defendant to similarly prompt access to a federal forum

when suit is brought in tribal court.

7

2. Because they mistakenly believed that the tribal ex-

haustion rule barred their consideration of the issue, neither

the district court nor the court of appeals determined

whether respondents’ claims do, in fact, fall within the

preemptive scope of the Price-Anderson Act. This Court

need not itself resolve that issue on the merits; rather, if it

agrees that the exhaustion requirement does not bar such

review, it may remand to the lower federal courts for consi-

deration of the issue in the first instance. In any event, the

torts alleged here do constitute “nuclear incident[s]” as that

term is broadly defined in 42 U.S.C. 2014(q), and respon-

dents’ claims are thus properly “deemed to arise]

under” the Act. 42 U.S.C. 2014(hh); see 42 U.S.C. 2014(w).

3. The final question potentially at issue is whether tribal

courts may adjudicate claims deemed to arise under the

Price-Anderson Act. That question is not properly before

the Court. Respondents did not appeal the district court’s

preliminary injunction barring them from “seek[ing] relief

under the Price-Anderson Act in tribal court.” J.A. 73a.

That default divests any reviewing court of jurisdiction to

revisit whether respondents may now seek that very relief

in tribal court. In any event, a basic purpose of the Price-

Anderson Act is to ensure simplicity and efficiency in the

litigation of nuclear tort claims by entitling defendants, upon

their motion, to a single federal forum for the adjudication of

all claims arising from any nuclear incident. That purpose

would be thwarted if tribal courts, unlike state courts, could

adjudicate such claims over the objection of the defendant.

ARGUMENT

A. The Tribal Exhaustion Doctrine Bars Premature Fed-

eral Intervention In Tribal Court Adjudication Of

Ordinary Preemption Defenses

The issue in this case antecedent to all others is this: Does

the usual tribal exhaustion requirement of National Far-

mers Union Insurance Cos. v. Crow Tribe, 471 U.S. 845

8

(1985), bar prompt federal court resolution of the parties’

threshold dispute concerning whether respondents’ claims

fall within the preemptive scope of the Price-Anderson Act?

The answer is no, and the reason relates to the extraordi-

nary character of the Act’s preemption provision, not to any

general principle concerning tribal court jurisdiction over

cases involving non-Indians.

1. A fundamental principle of federal Indian law is that

tribal courts may exercise jurisdiction in cases involving

non-Indians who “avail themselves of the substantial privi-

lege of carrying on business on the reservation.” Merrion v.

Jicarilla Apache Tribe, 455 U.S. 130, 137 (1982) (internal

quotation marks omitted). Although this Court recently

limited tribal jurisdiction over suits between non-Indians for

events arising on reservation lands that have been alienated

to non-Indians or to a State, see Strate v. A-1 Contractors,

520 U.S. 438 (1997), the Court “readily agree[d]” that “tribes

retain considerable control over nonmember conduct on tri-

bal land”: i.e., land owned by, or held in trust for, a Tribe or

its members. Id. at 454. Here, petitioners conducted their

mining activities on tribal lands (J.A. 87a-88a n.5), and the

petition for certiorari presents no claim that this case raises

the kind of territorial concerns at issue in Strate. See also

Merrion, supra (Tribes retain sovereign authority to tax

non-Indians doing business on leased tribal lands); Kerr-

* See, e.g., Williams v. Lee, 358 U.S. 217, 222-223 (1959) (tribal court

had exclusive jurisdiction to adjudicate contract dispute brought by non-

Indian against Indian, even though non-Indian had sued in state court;

“(ijt is immaterial that respondent is not an Indian,” because “[hje was on

the Reservation and the transaction with an Indian took place there”);

Kennerly v. District Court, 400 U.S. 423 (1971) (per curiam) (following

Williams); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 65 (1978) (tribal

courts are “appropriate forums for the exclusive adjudication of disputes

affecting important personal and property interests of both Indians and

non-Indians”); Jowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 18 (1987)

(“[t}ribal authority over the activities of non-Indians on reservation lands

is an important part of tribal sovereignty”).

McGee Corp. v. Navajo Tribe, 471 U.S. 195 (1985) (applying

Merrion to taxation of mineral production by non-Indians on

leased Navajo lands). Those mining activities thus fall

squarely within the class of cases in which tribal courts

retain presumptive jurisdiction over “nonmember conduct.”*

In National Farmers Union, this Court held that federal

courts have jurisdiction under 28 U.S.C. 1331 to consider

claims that federal law has “curtailed the powerl] of [a]

Tribe” to exercise jurisdiction over a defendant in a case

pending in tribal court. 471 U.S. at 852. The Court further

held, however, that a party may not obtain such relief until

after it has exhausted its remedies in the tribal judicial sys-

tem, a rule that the Court grounded in “a policy of support-

ing tribal self-government and self-determination,” “the

orderly administration of justice in the federal court,” and

the value of providing tribal courts with “the first opportu-

nity to evaluate the factual and legal bases for the chal-

lenge.” Jd. at 856. The Court at the time anticipated three

exceptions to the exhaustion rule: where the assertion of

tribal jurisdiction is in “bad faith,” where exhaustion would

be “futile,” and “where the action is patently violative of ex-

press jurisdictional prohibitions.” Id. at 856 n.21. Subse-

quently, in Jowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9

* Congress recently reaffirmed the United States’ commitment to

tribal courts by enacting the Indian Tribal Justice Act, Pub. L. No. 103-

176, 107 Stat. 2004 (1993), which provides financial and institutional assis-

tance to tribal justice systems throughout the United States. Congress

predicated that legislation on its findings that “tribal justice systems are

an essential part of tribal governments” and are “the appropriate forums

for the adjudication of disputes affecting personal and property rights,” 25

U.S.C. 3601(5) and (6); that “tribal courts are permanent institutions

charged with resolving the rights and interests of both Indian and non-

Indian individuals,” S. Rep. No. 88, 108d Cong., Ist Sess. 8 (1993); and that

“civil jurisdiction on an Indian reservation presumptively lies in tribal

court, unless affirmatively limited by a specific treaty provision or federal

statute,” H.R. Conf. Rep. No. 383, 108d Cong., Ist Sess. 13 (1998) (internal

quotation marks omitted).

10

(1987), the Court relied on the exhaustion doctrine in reject-

ing the efforts of a defendant in a pending tribal court case to

use the diversity statute to secure a federal court judgment

on the merits of a substantive issue pending in the tribal

court.”

2. Like cases in state court, cases in tribal court often

present issues about the preemptive effect of federal law on

a plaintiff's cause of action. The assertion of a preemption

defense is generally no basis for federal court intervention in

tribal court proceedings. In the absence of a contrary con-

gressional determination, tribal courts, no less than state

courts, are presumed competent to decide questions of fed-

eral law, including preemption.’ Indeed, in many contexts,

Although substantive federal Indian law gives tribal courts exclusive

jurisdiction over a variety of claims brought against Indians for events

arising on a reservation, see, ¢.g., Williams v. Lee, supra; see also Santa

Clara Pueblo, 436 U.S. at 65, in our view the exhaustion doctrine does not

itself rebut the ordinary rule that a plaintiff may select the forum in which

suit will be filed. But ef. United States v. Plainbull, 957 F 2d 724 (9th Cir.

1992). Where a private plaintiff challenges an exercise of taxing or regu-

latory authority by the Tribe itself, however, we believe that the plaintiff

ordinarily must first present its objections to the tribal administrative

agency and then to the tribal court. See, ., Middlemist v. Babbitt, 19

F.3d 1318 (9th Cir.), cert. denied, 513 U.S. 691 (1994); 94-42 Middlemist

Gov't Br. in Opp. 6-12.

® See, ., Santa Clara Pueblo, 436 U.S. at 65-66 (with narrow excep-

tions, tribal courts have exclusive jurisdiction to address preemptive

effect of Indian Civil Rights Act on tribal law); compare Northern States

Power Co. v. Prairie Island Mdewakanton Sioux Indian Community, 991

F.2d 458 (8th Cir. 1993) (holding that exhaustion would itself frustrate

federal statutory purposes); see generally S. Rep. No. 88, supra, at 8-9.

This Court has admonished that any concern about the competence of

tribal courts to address general legal issues “is not among the exceptions

to the exhaustion requirement established in National Farmers Un.on,

471 U.S., at 856, n. 21, and would be contrary to the congressional policy

promoting the development of tribal courts.” Jowa Mutual, 480 U.S. at 19;

accord id. at 21 (opinion of Stevens, J.) (“A federal court must always show

respect for the jurisdiction of other tribunals. Specifically, only in the

11

federal court adjudication of a preemption issue pending in

tribal court could “render the exhaustion requirement virtu-

ally meaningless, allowing a tribal court to assert jurisdiction

over an action only after a federal court had effectively

determined the merits of the case.” Reservation Tel. Coop.

v. Three Affiliated Tribes of the Fort Berthold Reservation,

76 F.3d 181, 185 (8th Cir. 1996). Moreover, abandonment of

the exhaustion requirement for cases involving standard

preemption defenses would expose the federal courts to bur-

densome requests for premature intervention in many

ordinary disputes arising in tribal courts. Cf. National Far-

mers Union, 471 U.S. at 856-857.

Contrary to petitioners’ suggestion (Pet. 13-16), tribal

court adjudication of ordinary preemption defenses, in cases

involving non-Indian conduct on tribal lands, is quite con-

sistent with this Court’s decision in Strate. That case con-

cerned whether a tribal court had adjudicatory jurisdiction

to hear a suit between non-Indians involving a traffic acci-

dent on a state highway within a reservation. The Court

concluded that the state highway was jurisdictionally

equivalent to land that the Tribe had alienated to non-

Indians, 520 U.S. at 454-456, and it reaffirmed that, with cer-

tain important exceptions and in the absence of a contrary

congressional direction, “Indian tribes lack civil authority

over the conduct of nonmembers on non-Indian land within a

reservation.” Id. at 446 (citing Montana v. United States,

450 U.S. 544, 565-566 (1981)). The Court separately ad-

dressed the argument that a tribal court’s adjudicatory

jurisdiction over non-Indians might exceed the Tribe’s “civil

authority” (or “regulatory jurisdiction”) over them, just as

the constitutional restrictions on a State’s power to impose

substantive rules of conduct on nonresidents do not them-

selves limit the power of state courts to adjudicate disputes

most extraordinary circumstances should a federal court enjoin the

conduct of litigation in a state court or tribal court.”).

12

between nonresidents under the laws of another State. See,

e.g., Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 821-822

(1985). In rejecting that argument, the Court held that, “[a]s

to nonmembers, * * * a tribe’s adjudicative jurisdiction

does not exceed its legislative jurisdiction.” 520 U.S. at 453.

Petitioners mistakenly cite that passage for the proposi-

tion that exhaustion of remedies in the tribal judicial system

is unnecessary when a defendant in a pending tribal court

action contends that federal law has preempted a tribe’s

“legislative jurisdiction.” Pet. 13, 16. As a preliminary

matter, the logical consequences of that position would ex-

tend well beyond the exhaustion doctrine: the cited passage

in Strate deals with jurisdiction, not exhaustion, and mis-

application of that passage to the preemption setting would

have odd and unfortunate jurisdictional effects. If federal

preemption of tribal legislative jurisdiction deprived tribal

courts of jurisdiction to hear a particular claim, tribal courts

would lack jurisdiction to uphold preemption defenses on the

merits; upon conducting the inquiry and finding preemption,

the tribal court would be compelled to dismiss the relevant

claim for lack of jurisdiction.

Strate does not compel such an anomalous regime. In re-

jecting the analogy to state court jurisdiction over nonresi-

dents involving conduct outside the forum State, Strate ad-

dressed an issue that, in many respects, is appropriately

compared to personal jurisdiction. The Strate Court’s equa-

tion of adjudicative and legislative jurisdiction means that

when a Tribe lacks a sufficient interest in non-Indian conduct

outside tribal lands to regulate the conduct directly, it also

lacks adjudicatory jurisdiction over cases arising from that

same conduct. That holding, however, is irrelevant where,

as here, the conduct arises on tribal lands and therefore falls

squarely within the heartland of tribal sovereignty, subject

only to the preemptive effect of a federal statute—applicable

to Indians and non-Indians alike—governing the subject

matter of the suit. See Strate, 520 U.S. at 454 (reaffirming

13

Tribes’ “considerable control over nonmember conduct on

tribal land”). Indeed, in this setting, it is inconsequential

that the defendants in tribal court happen to be non-Indians.

An Indian defendant could just as easily raise a federal

preemption challenge to a tribal law claim brought in tribal

court, and he would have no less an interest than a non-

Indian defendant in its appropriate resolution.

Thus, if a tribal court otherwise has jurisdiction to hear a

case (e.g., because the conduct occurred on tribal land), any

qualification of the tribal court’s authority to decide a pre-

emption defense on the merits, and to decide that issue in

the first instance, cannot logically derive from the jurisdic-

tional concerns underlying Strate.’ Any such qualification

must derive instead from the particular nature of the federal

statutory scheme at issue.

B. The Exhaustion Doctrine Does Not Bar A Federal

Court From Determining, In The First Instance, The

Effect Of The Price-Anderson Act's Complete Pre-

emption Scheme On Actions Pending In Tribal Court

1. In a suit brought in state court under state law,

“{flederal pre-emption is ordinarily a federal defense to the

plaintiff's suit. As a defense, it does not appear on the face of

a well-pleaded complaint, and, therefore, does not authorize

removal to federal court.” Metropolitan Life Ins. Co. v.

Taylor, 481 U.S. 58, 63 (1987) (emphasis added). Conse-

ln a concluding footnote, the Strate Court added that the exhaustion

requirement is inapplicable when a federal court is asked to consider the

validity of “tribal-court jurisdiction over an action such as this one,” be-

cause adherence to that requirement would then serve “no purpose other

than delay.” 520 U.S. at 459-460 n.14. That footnote does not exempt from

the exhaustion requirement all circumstances in which a federal court con-

siders the proper resolution of a substantive issue pending in tribal court

to be “clear.” Cf. Pet. 14 & n.17. Instead, it indicates only that exhaustion

is not required when, in cases presenting the territorial jurisdictional con-

cerns at issue in Strate, a tribal court plainly lacks adjudicatory jurisdic-

tion over the conduct of non-Indians on alienated land.

14

quently, ordinary preemption defenses must often be de-

cided by state courts—even when the defendant would

prefer to have a federal court decide the issue, even when

the preemption defense is “obvious,” id. at 66, and “even if

both parties concede that the federal defense is the only

question truly at issue,” Caterpillar Inc. v. Williams, 482

U.S. 386, 393 (1987). As discussed, the same rule should

apply to tribal court adjudication of an ordinary federal pre-

emption defense to a cause of action arising under tribal law.

The preemption claim that petitioners raise, however, is

not an ordinary preemption defense. “On occasion, the Court

has concluded that the pre-emptive force of a [federal]

statute is so extraordinary that it converts an ordinary state

common-law complaint into one stating a federal claim for

purposes of the well-pleaded complaint rule. Once an area of

state law has been completely pre-empted, any claim pur-

portedly based on that pre-empted state law is considered,

from its inception, a federal claim, and therefore arises under

federal law.” Caterpillar, 482 U.S. at 393 (internal quotation

marks and citation omitted) (addressing Section 301 of the

Labor-Management Relations Act).“

The principal consequence of “complete preemption,” as

distinguished from ordinary preemption, is this: A defen-

dant sued in state court may immediately remove the case to

federal court; have the federal court resolve any dispute

about whether the plaintiff’s claims fall within the scope of

the completely preemptive scheme; and, if they do, have the

federal court adjudicate the case on the merits if the plaintiff

elects to proceed (and can proceed) with claims under federal

law. See Caterpillar, 482 U.S. at 391 n.4, 393-394; Metropoli-

* Accord Metropolitan Life, 481 U.S. at 65 (Employee Retirement

Income Security Act); Franchise Tax Bd. v. Construction Laborers Vaca-

tion Trust, 463 U.S. 1, 24 (1983) (same); see also Oneida Indian Nation v.

County of Oneida, 414 U.S. 661, 675 (1974).

15

tan Life, 481 U.S. at 63-65.’ Significantly, a defendant’s right

to immediate federal court resolution of a preemption claim

depends not on whether that claim is “obvious[ly]” correct at

the outset, see Metropolitan Life, 481 U.S. at 66, or even on

whether it is ultimately meritorious, see, e.g., Caterpillar,

supra, but on whether it is a claim about complete, rather

than ordinary, preemption. Where a federal statutory

scheme creates a sphere of complete preemption, the federal

court, upon removal, has sole authority to decide whether a

state law claim falls within that sphere, and “the State court

shall proceed no further unless and until the case is

remanded.” 28 U.S.C. 1446(d).

2. Congress has created only a few complete preemption

regimes, and the Price-Anderson Act is among them. The

Act provides that “any suit asserting public liability,” as that

term is defined in 42 U.S.C. 2014(w), “shall be deemed to be

an action arising under” the Price-Anderson Act itself (42

U.S.C. 2014(bh)); that “the substantive rules for decision in

such action shall be derived from the law of the State in

which the nuclear incident involved occurs,” but only if that

law is consistent with the Act (ibid.); and that, upon

motion of the defendant” or the NRC or the Secretary of

Energy, “any such action pending in any State court * * *

shall be removed or transferred to the United States district

court” for “the district where the nuclear incident t{ook]

place” (42 U.S.C. 2210(n)(2)).

Some federal statutory schemes have that jurisdictional effect be-

cause they completely occupy the relevant field and create an alternative

federal cause of action, even though they lack a provision explicitly deem-

ing common law claims to be claims arising under federal law for purposes

of the well-pleaded complaint rule. See generally Caterpillar, 482 U.S. at

393-394; 14A C. Wright et al., Federal Practice and Procedure § 3722, at

86-87 (1998 Supp.). As discussed below, however, the Price-Anderson Act

does have an explicit “deeming” provision, and it has completely pre-

emptive effect for that reason alone.

16

For the moment, we leave to one side our answer as to

whether this case in fact falls within the preemptive scope of

Section 2014(hh). See pp. 26-30, infra. For present pur-

poses, the important point is that for some class of claims

brought initially under state law, the Price-Anderson Act

converts those claims into “action[{s] arising under” federal

law. See pp. 17-18 & n.10, infra. As a result, if this suit had

initially been brought in state court, petitioners would have

been entitled (by removing the case) to an immediate deter-

mination by a federal court, rather than by the state court, of

whether the suit falls within the preemptive scope of the

Price-Anderson regime. That fact is highly relevant to the

first question presented here: Does the rule announced in

National Farmers Union foreclose prompt federal court re-

solution of the parties’ dispute concerning whether respon-

dents’ claims fall within the Act’s scope, even though the

federal courts would immediately resolve that dispute if the

case had been filed in state court?

The answer is no. Unlike the well-pleaded complaint rule

governing the respective roles of state and federal courts,

the tribal exhaustion doctrine arises “as a matter of comity,

not as a jurisdictional prerequisite.” Jowa Mutual, 480 U.S.

at 16 n. S. That doctrine is reoted largely in a long-standing

congressional “policy of supporting tribal self-government

and self-determination,” National Farmers Union, 471 U.S.

at 856; see also Jowa Mutual, 480 U.S. at 16-17, and it is

subject to complete defeasance by Congress. Although the

jurisdictional roles of tribal and state courts may diverge in

other contexts (see note 5, supra; note 13, infra), the role of

state courts is an appropriate point of reference for deter-

mining the dimensions of the congressional policy favoring

tribal sovereignty in the complete preemption setting.

Where some particularized federal interest has prompted

Congress to single out a subject matter for complete pre-

emption, the courts should not lightly presume that Con-

gress intended to make federal court review of the threshold

17

preemption question less available to tribal court defendants

than to state court defendants. That, however, would be the

peculiar consequence of applying the exhaustion doctrine

here to bar prompt federal court review of that question.

Forcing a federal court to “stay its hand” (Jowa Mutual, 480

U.S. at 16) when asked to decide a Price-Anderson preemp-

tion challenge would frustrate the core purposes of the Act,

as we next discuss.

3. Until the 1988 amendments to the Price-Anderson

Act, claims of injury due to “nuclear incidents” were brought

under state law, although federal law preempted state law in

important respects. See In re TMI Litig. Cases Consol. II.

940 F.2d 832, 857 (3d Cir. 1991) (TMI IJ), cert. denied, 503

U.S. 906 (1992); see also Silkwood v. Kerr-McGee Corp., 464

U.S. 238, 251-256 (1984). Absent complete diversity, there-

fore, the federal courts lacked original jurisdiction to hear

most such claims. See, e. g., Stibitz v. General Pub. Util.

Corp,, 746 F.2d 993 (3d Cir. 1984), cert. denied, 469 U.S. 1214

(1985); Kiick v. Metropolitan Edison Co., 784 F.2d 490, 493

(3d Cir. 1986).

That jurisdictional impediment assumed particular impor-

tance after the nuclear incident at Three Mile Island in 1979,

which gave rise to “150 separate caséS against TMI defen-

dants, with over 3,000 claimants, in various state and Fed-

eral courts.” See S. Rep. No. 218, 100th Cong., Ist Sess. 13

(1987). There was then no mechanism for removing those

cases to a single federal court. The then-existing removal

and consolidation provisions of the Price-Anderson Act were

confined to “extraordinary nuclear occurrences” (see 42

U.S.C. 2014(j)), and the NRC had not declared the Three

Mile Island incident to be such an occurrence. The resulting

proliferation of uncoordinated lawsuits led Congress to

amend the removal and consolidation provisions to encom-

pass cases arising out of any “nuclear incident.” See 42

U.S.C. 2014(hh), 2210(n)(2). To ensure removability, Con-

~gress converted “any suit asserting public liability” for a

18

nuclear incident into “an action arising under” the Price-

Anderson Act. 42 U.S.C. 2014(hh) (emphasis added).”°

“By creating this federal program which requires the

application of federal law,” Congress sought to achieve

“equity[] and efficiency in the disposition of public liability

claims.” TMI II, 940 F.2d at 857; accord 42 U.S.C.

2210(n\(3CKvi) (encouraging “the equitable, prompt, and

efficient resolution of cases arising out of [a] nuclear inci-

dent”). In particular, It he availability of the provisions for

consolidation of claims in the event of any nuclear incident,

not just an [extraordinary nuclear occurrence], would avoid

10 See O'Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1099-1100

(7th Cir.) (given “Congress’ manifest intent to create a new and entirely

federal cause of action,” “a state cause of action is not merely transferred

to federal court; instead, a new federal cause of action supplants the prior

state cause of action”), cert. denied, 512 U.S. 1222 (1994); TMI IT, 940 F.2d

at 856 (“The Amendments Act [of 1988] creates a federal cause of action

which did not exist prior to the Act.“). Congress specifically intended to

“mak[e] suits asserting public liability ‘[c]ases arising under the [l]aws of

the United States’ within the meaning of Article III,” and it did so to

ensure the adjudication of such suits in federal court. H.R. Rep. No. 104,

100th Cong., Ist Sess., Pt. 1, at 18 (1987) (House Report) (internal ellipsis

omitted); accord S. Rep. No. 218, 100th Cong., Ist Sess. 13 (1987). In so

doing, it followed aspects of the well-established jurisdictional model of

the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. 1333(a)(2),

1349(b)(1). House Report at 18; see generally Gulf Offshore Co. v. Mobil

Oil Corp., 453 U.S. 473 (1981) (discussing OCSLA jurisdictional scheme).

The courts of appeals that have considered the issue have uniformly held

that the Price-Anderson Act’s conversion of nonfederal causes of action

into removable federal causes of action is consistent with Article III, even

though those federal causes of action incorporate substantive state law to

the extent that it is consistent with federal law. See O Conner, 13 F.3d at

1094-1101; TMI II. 940 F.2d at 848-860; Nieman v. NLO, Inc., 108 F.3d

1546, 1548-1549 (6th Cir. 1997). (In addition to the provisions of the Price-

Anderson Act itself, federal law often conflicts with, and takes precedence

over, state law on such substantive issues as standard of care. See, g.

Roberts v. Florida Power & Light Co., 146 F.3d 1305, 1308 (11th Cir. 1998),

petition for cert. pending, No. 98-640 (filed Oct. 16, 1998); O Conner, 13

F. gd at 1108-1105; TMI II. 940 F.2d at 859-860.) Respondents raised no

Article III challenge in the court of appeals.

19

the inefficiencies resulting from duplicative determinations

of similar issues in multiple jurisdictions that may occur in

the absence of consolidation.” S. Rep. No. 218, supra, at 13.

Moreover, by creating centralized control over compensation

funds, those same provisions also “ensur[e] the equitable and

uniform treatment of all victims.” H.R. Rep. No. 104, 100th

Cong., Ist Sess., Pt. 3, at 30 (1987).

The statutory emphasis on equityſ] and efficiency” (TMI

II. 940 F.2d at 857) would_be compromised if tribal courts,

unlike state courts, were immune from immediate federal

court review of any threshold dispute concerning whether a

plaintiff's claims fall within the completely preemptive scope

of the Price-Anderson Act. Such review serves two princi-

pal objectives. First, in many contexts, prompt federal court

resolution of the preemption question will foreclose uncoor-

dinated litigation in disparate forums concerning whether

the claims fall within the scope of the Act and its substantive

rules, such as (where an indemnification agreement makes

them applicable) the limits on compensatory liability or the

ban on punitive damages. See 42 U.S.C. 2210(e) and (s); see

also 42 U.S.C. 2210(n)(1) (foreclosing certain defenses in case

of “extraordinary nuclear occurrence”); pp. 28-30, infra.

Second, Congress anticipated that, upon finding that the Act

applies, the federal court would itself promptly adjudicate

the case on the merits. See pp. 22-25, infra.

Below, we address whether, unlike a state court, a tribal

court may adjudicate claims “deemed to * * aris{e] un-

der” the Price-Anderson Act (42 U.S.C. 2014(hh)), even

when the defendant would prefer a federal forum. Our

central point here is simply that Congress had important,

efficiency-based policy reasons for assigning to the federal

courts the task of immediately resolving, in the first

instance, whether a particular case falls within the scope of

the Act’s complete preemption provisions. Those efficiency

concerns are applicable to suits filed in any non-federal

court, not just those filed in state courts. This is therefore

20

one of those unusual circumstances, like the three

anticipated in National Farmers Union itself (see 471 U.S.

at 856 n.21), in which the ordinary exhaustion rule must yield

to a supervening federal interest. It would make little sense

to apply that “prudential rule” (Strate, 520 U.S. at 453) to

foreclose the immediate federal court preemption review

that, for highly specific reasons, Congress made available to

any defendant sued in similar circumstances in state court.

4. In seeking an injunction in the district court against

further tribal court proceedings, petitioners claimed not just

that the Price-Anderson Act preempted respondents’ tribal

law claims and converted them into claims arising under the

Act, but also that the tribal court lacks jurisdiction to

adjudicate claims that are brought under the Price-Anderson

Act (including claims that are brought under tribal law but

are “deemed” to be claims arising under the Act). Our

analysis to this point has not addressed the latter issue. We

have detached that issue from the rest of our analysis not so

much because it is analytically natural to do so as because

this case arrives here in a very peculiar procedural posture.

Respondents did not cross-appeal from the district court’s

preliminary injunction barring them from “seek[ing] relief

under the Price-Anderson Act in tribal court.” J.A. 73a; see

also J. A. 69a, 7la. That default bars current appellate consi-

deration of whether the injunction was proper.

a. When one party files a notice of appeal from a district

court’s judgment and the opposing party files no cross-

appeal, “the appellee may not attack the decree with a view

either to enlarging his own rights thereunder or of lessening

the rights of his adversary.” United States v. American Ry.

Express Co., 265 U.S. 425, 435 (1924) (Brandeis, J.). Al-

though language in one early opinion suggested that this was

a “rule of practice” rather than a strict jurisdictional prereq-

uisite, see Langnes v. Green, 282 U.S. 531, 538 (1931), this

Court has subsequently stated that the rule is “inveterate

and certain,” Massachusetts Mut. Life Ins. Co. v. Ludwig,

21

426 U.S. 479, 480 (1976), and that it defines “(t]he power of an

appellate court to modify a decree,” Morley Constr. Co. v.

Maryland Cas. Co., 300 U.S. 185, 187 (1937) (emphasis

added). Indeed, permitting an appellee to challenge a dis-

trict court judgment without having filed its own notice of

appeal under Rule 4(a)(3) of the Federal Rules of Appellate

Procedure would be “equivalent to permitting courts to ex-

tend the time for filing a notice of appeal” and would there-

fore contradict “the mandatory nature of the time limits con-

tained in Rule 4.” Torres v. Oakland Scavenger Co., 487 U.S.

312, 315 (1988); see also Budinich v. Becton Dickinson & Co.,

486 U.S. 196, 203 (1988) (“the taking of an appeal within the

prescribed time is mandatory and jurisdictional”)."

For those reasons, the court of appeals lacked jurisdiction

to vacate the district court’s injunction barring respondents

from “seek[ing] relief under the Price-Anderson Act in tribal

court” (J.A. 73a), and any dispute about the validity of that

injunction on the merits is not properly presented in this

Court. Significantly, the question of_the tribal court’s

authority to adjudicate Price-Anderson claims on the merits

is not logically antecedent to (even though it is obviously

In Torres, the Court held that, despite the “harshness” of the result

(487 U.S. at 317), a failure to identify all parties in a notice of appeal is a

“jurisdictional bar” to appellate relief for any omitted party (id. at 314).

Most courts that have considered the issue in light of Torres have held

that noncompliance with the cross-appeal requirement presents a juris-

dietional bar to modification of the district court’s judgment to the benefit

of an appellee. See, g., Johnson v. Teamsters Local 559, 102 F.3d 21, 29

(Ist Cir. 1996); Young Radiator Co. v. Celotex Corp, 881 F.2d 1408, 1416

(7th Cir. 1989). But see, e.g., Spann v. Colonial Village, Inc., 899 F. 2d 24,

82 (D.C. Cir 1990) (R.B. Ginsburg, J.), cert. denied, 498 U.S. 980, 1046

(1990). To support its contrary position, the court of appeals in this case

relied on precedent holding that a court may consider issues of comity not

raised by the parties. J.A. 82a. But a court’s power to address unraised

issues in support of a judgment is distinct from, and has always exceeded,

its power to grant unrequested relief. See generally American Ry.

Express, 265 U.S. at 435; see also Jowa Mutual, 480 U.S. at 16 n.8 (tribal

exhaustion doctrine is not “jurisdictional”).

—

22

related to) the separate question that is presented here: the

appropriateness of a prompt federal court inquiry into

whether the purportedly tribal claims now pending in tribal

court fall within the Act’s complete preemption scheme to

begin with. Indeed, the latter question may be antecedent to

the former, for only if the federal court determines that

these are in fact Price-Anderson Act claims would it become

necessary to decide whether a tribal court may properly

adjudicate them as such.

The procedural peculiarities of this case present an

unfortunate jurisdictional barrier to full consideration of the

issues that would otherwise be presented. But the court of

appeals’ most basic error was to act without jurisdiction.

Correction of that error should take precedence over correc-

tion of any mistakes the court may have made after errone-

ously assuming jurisdiction.

b. The question on which respondents have defaulted is

important. On the one hand, the Price-Anderson Act does

not explicitly address tribal court jurisdiction over claims

arising under the Act, nor does it provide for removal of

Price-Anderson claims from tribal court to federal court.

Compare 42 U.S.C. 2014(hh) (converting “any suit asserting

public liability” into suit arising under Act) with 42 U.S.C.

2210(n)(2) (providing for removal only from “any * * *

action pending in any State court”). As a general matter,

“the proper inference from silence is that [a Tribe's] sover-

eign power remains intact.” Jowa Mutual, 480 U.S. at 18

(internal ellipses omitted) (quoting Merrion, 455 U.S. at 149

n. 14). Like state courts, tribal courts are courts of general

subject-matter jurisdiction, and, where they have jurisdic-

tion over the parties, they are presumed competent to adju-

dicate claims arising under any source of law, including fed-

eral law, in the absence of a contrary congressional deter-

mination. See generally S. Rep. No. 88, supra, at 8-9.

On the other hand, Congress’s desire for equityl] and

efficiency in the disposition of public liability claims” (TAI

II. 940 F.2d at 857), and its creation of a complete preemp-

tion scheme to achieve those objectives, underscore an

obvious intent to ensure, at the election of the defendant or

the government, expeditious federal court review on the

merits of any suit falling within the scope of the Price-

Anderson Act. Evidence of that intent abounds throughout

the Act. As we have discussed, Congress created a complete

preemption regime in this context to expedite litigation con-

cerning nuclear torts, to “avoid the inefficiencies resulting

from duplicative determinations of similar issues in multiple

jurisdictions that may occur in the absence of consolidation,”

S. Rep. No. 218, supra, at 13, and to give the federal courts

centralized control over compensation funds to “ensur{e]} the

equitable and uniform treatment of all victims,” H.R. Rep.

No. 104, supra, Pt. 3, at 30. Without any mechanism for

transfer from tribal to federal court, tribal court adjudication

of claims arising from nuclear incidents would threaten to

cause the very litigation problems that Congress sought to

rectify: delay, uncoordinated litigation in disparate forums

concerning the same underlying nuclear incident, and dis-

persal of related compensation claims. Indeed, a pervasive

premise of the Act is that defendants may avoid such pro-

blems simply by seeking consolidated federal court review of

all cases arising from a single incident. See, e.g., 42 U.S.C.

2210(n) and (o).

Of course, not every case falling within the Act’s pre-

emptive scope will ultimately present each of those prob-

lems, because not every nuclear incident will give rise to

multiple tort suits. Congress legislated with a broad brush,

however, because it is often difficult to know in advance how

many plaintiffs will eventually seek relief for radiation-

related illnesses caused by a single nuclear incident. See

TMI II, 940 F.2d at 856. Congress's decision to include al/

“nuclear incidents” within the Act’s preemptive scope, and to

guarantee a federal forum to any defendant sued within that

scope, represents a considered preference for bright-line

24

rules in this area. That preference would be defeated if im-

portant jurisdictional decisions were to turn on litigation-

intensive, case-by-case predictions in disparate forums about

the potential for a particular nuclear incident to give rise to

multiple tort suits.”

In sum, Congress anticipated only two forums for the

adjudication of Price-Anderson claims, and they are the two

forums that the Act explicitly addresses: federal courts and,

subject to an absolute right of removal, state courts. See 42

U.S.C, 2210(n\(2). Tribal court adjudication of Price-Ander-

son claims, over the objection of the defendant and without

any mechanism for removal, would contradict the structure

and purposes of the Act. And application of the exhaustion

rule to delay federal-court adjudication of the proper forum

for Price-Anderson claims would itself contradict the Act’s

emphasis on efficiency and simplicity in nuclear tort litiga-

tion. Cf. National Farmers’ Union, 471 U.S. at 856 n.21.

Because the Act is intended to ensure automatic adjudica-

tion of nuclear liability claims by the federal courts ſulpon

motion of the defendant” or the government (42 U.S.C.

2210(n)(2)), the Act might be read to confine jurisdiction

over such claims to the federal and state courts. In our view,

however, the rule favoring retained tribal sovereignty to the

extent consistent with federal law (see Merrion, 455 U.S. at

149 n.14) supports a slightly different approach. The Act

Although Congress created an exclusively federal cause of action for

“any suit asserting public liability,” it provided that “the substantive rules

for decision in such action shall be derived from the law of the State in

which the nuclear incident involved occurs,” except where inconsistent

with the Price-Anderson Act. 42 U.S.C. 2014(hh); see also note 10, supra

(noting role of federal law in setting standard of care). Under one natural

interpretation of that provision, tribal courts adjudicating Price-Anderson

claims might need to apply state law in important respects. Cf. Richards

v. United States, 369 U.S. 1 (1962). Because the statutory scheme

provides for automatically divesting the state courts themselves of their

role in applying state law, it would be somewhat anomalous to preserve

for tribal courts a much larger role in applying that same state law.

preserves state court jurisdiction over Price-Anderson

claims in the absence of any request for removal. Similarly,

the exercise of tribal court jurisdiction over such claims

comes into clear conflict with federal law when, and only

when, the defendant (or the government) seeks, but cannot

obtain, a federal forum. In those circumstances, just as a de-

fendant resisting state court jurisdiction may obtain imme-

diate removal to a federal forum for adjudication of the case

on the merits, a defendant resisting tribal court jurisdiction

over Price-Anderson claims should be entitled, upon serving

notice in the tribal court, ef. 28 U.S.C. 1446(d), to seek

prompt injunctive relief in federal court, if necessary, on the

ground that further proceedings in tribal court would be

inconsistent with the Act. Cf. National Farmers Union, 471

U.S. at 850-853. The plaintiffs who had brought the claims

would be free to refile them in federal court.”

'3 Our conclusions concerning the role of tribal courts in adjudicating

Price-Anderson claims derive from the strength and specificity of the

policy objectives underlying Congress’s decision to ensure the availability

of federal court review in the nuclear tort context. Adoption of our analy-

sis would not require the Court to address the role of tribal courts in

deciding federal causes of action generally, even though, if brought in

state court, virtually any federal cause of action may be removed to fed-

eral court. See 28 U.S.C. 1441. — eee ee

pelling purposes underlying the removal provisions Price-Anderson

Act, “the underlying purposes of Congress in providing for federal

question removal jurisdiction remain somewhat obscure.” Boys Markets,

Inc. v. Retail Clerks Union, 398 U.S. 235, 246 (1970). Similarly, as this

Court has recognized, general principles of federal court diversity juris-

diction have little bearing on tribal court adjudicatory authority. See

Iowa Mutual, 480 U.S. at 16-18. Suits against federal officers in tribal

court raise a separate set of concerns involving not just interpretation of

the provision specifically providing for the removal of suits in state court

against such officers (28 U.S.C. 1442(a\(1) (Supp. II 1996)), but also princi-

ples of comity between the national and dependent sovereigns. Compare

United States v. Yakima Tribal Court, 806 F.2d 853 (9th Cir. 1986), cert.

denied, 481 U.S. 1069 (1987), with Becenti v. Vigil, 902 F.2d 777, 779-780

(10th Cir. 1990).

C. Respondents’ Tribal Law Claims Fall Within The Pre-

emptive Scope Of The Price-Anderson Act.

Respondents argued below that the Price-Anderson Act

“has no application whatsoever to the case at bar.” Appel-

lees’ Joint C.A. Br. 23. They reasoned that petitioners had

entered into no relevant indemnification agreement with the

Atomic Energy Commission when conducting the mining ac-

tivities at issue; that the term “nuclear incident,” as defined

in 42 U.S.C. 2014(q), encompasses only those “incidents” that

implicate such indemnification agreements; that the claims

here are therefore not claims for “public liability,” as that

term is defined in 42 U.S.C. 2014(w); and that these are

therefore not “public liability action{s]” to which the Act’s

preemption provisions apply, see 42 U.S.C. 2014(hh),

2210(n)\(2) and (3). We disagree.

1. As an initial matter, we do not believe that resolution

of this case compels this Court to decide, on the merits,

whether the absence of an indemnification agreement re-

moves respondents’ claims from the scope of the Price-

Anderson Act—an issue that the court of appeals did not

reach (see J.A. 92a n.7) and, notably, does not appear in

respondents’ brief in opposition to the petition for certiorari.

Cf. Sup. Ct. R. 15.2. The question presented in this case is

whether the tribal exhaustion doctrine bars immediate fed-

eral court review of the Act’s preemptive effect (if any) on

respondents’ claims under tribal law. The reason the answer

to that question is no is not that petitioners’ preemption

argument is correct on the merits (although we believe it is),

but because it is an argument about complete preemption

under the Price-Anderson Act, rather than an ordinary pre-

emption defense under some other federal statute.

When a state court defendant cites federal preemption as

a basis for removal, a federal court may decide the preemp-

tion question in the first instance if the question concerns

whether a claim falls within the scope of a completely pre-

emptive scheme (whether or not the answer is obvious), and

27

may not do so if the question concerns whether the claim

falls within the scope of an ordinary preemption defense

(again, whether or not the answer is obvious). See Metro-

politan Life, 481 U.S. at 66. If the issue is one of complete

preemption, the court simply conducts the inquiry and then,

depending on the outcome, either does or does not remand

the case to state court. A similar approach is appropriate

when the suit is initially brought in tribal court. The special

features of the Price-Anderson Act that make the ordinary

exhaustion rules inapplicable do not turn on whether, in a

particular case, the federal court ultimately finds that the

tribal claims at issue fall within the preemptive scope of that

Act. If the court is uncertain at the outset whether the

claims do fall within that scope, the proper and efficient

course is not to abstain from making the inquiry, but to

conduct the inquiry and, if complete preemption is found, to

enjoin the proceedings in tribal court.

In this case, no federal court has yet addressed whether

respondents’ tribal law claims fall within the preemptive

scope of the Act. Like the district court (J. A. 7la, 73a), the

court of appeals mistakenly held that the tribal exhaustion

doctrine foreclosed any consideration of that substantive

preemption question. J. A. 92a n.7. If this Court reverses on

the threshold exhaustion issue, one appropriate disposition is

thus simply to remand the case to the lower courts for consi-

deration, in the first instance, of the parties’ dispute about

whether these claims fall within the Act’s preemptive scope.

2. In any event, we disagree with the position, advanced

by respondents below, that the Act’s preemption provisions

are inapplicable in the absence of an indemnification agree-

ment. The Act preempts, and “deem[s] to be an action aris-

ing under” federal law, any “public liability action,” which

the Act defines as “any suit asserting public liability.” 42

28

U.S.C. 2014(hh)."* “Public liability“ so named because it

involves liability to (not of) the publir is broadly defined

to include “any legal liability arising out of or resulting from

a nuclear incident.” 42 U.S.C. 2014(w). In turn, “nuclear in-

cident” is defined to include “any occurrence, including an

extraordinary nuclear occurrence, causing

bodily injury, sickness, disease, or death * arising out

of or resulting from the radioactive, toxic, explosive, or other

hazardous properties of source, special nuclear, or byproduct

material.” 42 U.S.C. 2014(q); see also 42 U.S.C. 2014(z) (de-

fining “source material” to include “uranium”). Nowhere

does the Act make the existence or nonexistence of an in-

demnification agreement relevant to whether a nonfederal

claim falls within the scope of a “public liability action” for

purposes of the removal and preemption provisions.“

' Section 2014(hh) defines the term “public liability action” “as used in

section 2210.” The term appears in only two places in Section 2210. First,

it appears in the removal and consolidation provision of Section 2210(n)(2),

which makes no reference to indemnification agreements at all. The term

also appears, by cross-reference to Section 2210(n)(2), in Section

2210(n3). That provision cites certain circumstances involving indemni-

fication agreements as included within a larger class of circumstances in

which a district court is authorized to appoint a “special caseload manage-

ment panel.” See 42 U.S.C. 2210(n\(3)A)i) and (ii). Nothing in Section

2210(n\(2) or Section 22 100) suggests that the removal and consoli-

dation provisions are applicable only where there is an underlying indemn-

See, eg., S. Rep. No. 296, 85th Cong. Ist Sess. 8 (1957) (discussing

efforts to “determine the amount of financial protection which the licensee

for reactors must have to protect the public against nuclear incidents”); id.

at 15 (term “financial protection” is “defined to mean the ability to respond

in damages for public liability”); id. at 17 (term “public liability” means “a

legal liability arising out of, or resulting from, a nuclear incident”); id. at 18

(discussing “damage to the public”).

The Act defines “person indemnified” to include, inter alia, the

following: “with respect to a nuclear incident occurring within the United

States or outside the United States as the term is used in section 2210(c)

of this title, * * * the person with whom an indemnity agreement is exe-

cuted or who is required to maintain financial protection, and any other

—

In contrast, many of the Act’s other important provisions

—such as the damages cap (42 U.S.C. 2210(e)) and the ban on

punitive damages (42 U.S.C. 2210(s))—specifically provide,

on their face, that they apply only in contexts involving

indemnification agreements." That is further reason not to

read a similar limitation into the provisions at issue here. It

is true that, when Congress originally passed the Price-

Anderson Act in 1957, it was chiefly concerned with nuclear

liability in the particular contexts in which defendants would

have entered into indemnification agreements with the gov-

ernment. See, e. g., S. Rep. No. 296, 85th Cong., Ist Sess. 16-

18 (1957). And it is also true that, before the 1988 amend-

ments, the Act itself (as distinguished from federal regula-

tion generally (see note 10, supra)) had little substantive

significance for cases in which the defendant had no such

person who may be liable for public liability.“ 42 U.S.C. 2014(t). That

definition is written broadly to “protect|} the public” in case a third party,

rather than the person with whom the indemnity agreement is executed,”

causes a nuclear incident at a regulated facility: ¢.g., where “sorne unusual

incident, such as negligence in maintaining an airplane motor, should cause

an airplane tovcrash into a reactor.” See, ¢.g., S. Rep. No. 296, supra, at 17.

Under any reasonable definition, however, the term does not embrace con-

texts in which no one has an indemnification agreement with the govern-

ment. The term itself, and its use elsewhere in the Act, presuppose the

existence of some relevant person identified as “the person

with whom an indemnity agreement is executed.” 42 U.S.C. 2014(t); see,

eg., 42 U.S.C. 2210(c). Here, petitioners have no indemnity agreement

with the government, and therefore, as they have acknowledged, El

Paso’s and Cyprus’ claims are not subject to federal indemnification.” Pet.

10 n.9; see also Lane v. Pena, 518 U.S. 187, 192 (1996) (“a waiver of the

Government’s sovereign immunity will be strictly construed, in terms of

its scope, in favor of the sovereign”).

7 In so providing, those provisions use language confirming that the

term “nuclear incident” is not confined to cases involving indemnification

agreements. See, e.g., 42 U.S.C. 2210(s) (“No court may award punitive

damages in any action with respect to a nuclear incident or precautionary

evacuation against a person on behalf of whom the United States is obli-

gated to make payments under an agreement of indemnification covering

such incident or evacuation.”).

30

agreement. By their terms, however, the preemption, re-

moval, and consolidation provisions resulting from the 1988

amendments extend to all cases involving “nuclear inci-

dents,” as broadly defined by the Act, whether or not the de-

fendant has an indemnification agreement with the govern-

ment.“ The plain language of those provisions is dispositive,

even though it embraces a larger class of nuclear liability

cases than the particular subclass with which Congress was

most acutely concerned. See Brogan v. United States, 118 S.

Ct. 805, 809 (1998) (It is not, and cannot be, our practice to

restrict the unqualified language of a statute to the parti-

cular evil that Congress was trying to remedy.”).

CONCLUSION

The judgment of the court of appeals should be reversed.

See Kerr-McGee Corp. v. Farley, 115 F.3d 1498, 1504 (10th Cir.

1997), cert. denied, 118 S. Ct. 880 (1998); see also Gassie v. SMH Swiss

Corp., No. Civ. A. 97-3557, 1998 WL 71647 (E.D. La. Feb. 17, 1998) (unre-

ported); Northeast Ohio Reg Sewer Dist. v. Advanced Med. Sys., Inc., 666

N.E.2d 612 (Ohio Ct. App. 1995); ef. In re Cincinnati Radiation Lit., 874

F. Supp. 796, 832 (S.D. Ohio 1995). But see Gi’berg v. Stepan Co., No. Civ.

A. 98-139, 1998 WL 565978 (D.N.J. Aug. 20, 1998) (magistrate judge deci-

sion). Respondents contended below that, in a footnote in Silkwood, 464

U.S. at 252 n.12, this Court suggested that the Act does not “apply” in the

absence of an indemnification agreement. As the Tenth Circuit observed

in Kerr. Mcd (115 F. gd at 1504), however, that footnote holds only that

the Act’s liability limitation provisions were inapplicable in Silkwood be-

cause the defendant had no indemnification agreement. The applicability

of the Act’s new preemption and removal provisions was, of course, not at

issue, because Silkwood was decided before the 1988 amendments.

Respectfully submitted.

JOHN D. LESHY

Solicitor

Department of the Interior

MARY ANNE SULLIVAN

General Counsel

Department of Energy

JOHN F. CORDES

Solicitor

DECEMBER 1998

31

SETH P. WAXMAN

Solicitor General

Lois J. SCHIFFER

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

JONATHAN E. NUECHTERLEIN

Assistant to the Solicitor

General

MARTIN W. MATZEN

ETHAN G. SHENKMAN

Attorneys