El Paso Natural Gas Co. v. Neztsosie - Oral Argument

Argument of James R. Atwood

Chief Justice Rehnquist: We'll hear argument next in Number... in 98-6, El Paso Natural Gas Company v. Laura Neztsosie.

Mr. Atwood.

Mr. Atwood: Mr. Chief Justice, and may it please the Court:

The two consolidated courses... cases here arose from uranium mining and milling activity that occurred on the Navajo reservation some 40 years ago.

The petitioners or their predecessors produced this uranium under licenses and contracts with the Atomic Energy Commission and sold it to the Government under the Government's uranium procurement program.

All of the uranium was used for military purposes.

Some decades after the uranium operations closed down, my clients were sued in Navajo Tribal Court by the respondents.

The respondents are members of the Navajo Tribe, and they claim that from long-term exposure to uranium and other hazardous properties produced by the petitioners' operations, they suffered injury.

The claims in tribal court were pleaded entirely under tribal law.

It is our basic contention in this case that claims of nuclear tort such as those raised by respondents must be heard under Federal law and that, under the relevant Federal law, the defendants are entitled to a Federal forum.

Congress visited this issue of nuclear torts on more than a half-dozen occasions over the last 40 years, and in the Atomic Energy Act itself, in the Price-Anderson provisions of the Atomic Energy Act, Congress developed a rather elaborate set of procedural and substantive rules to govern how nuclear torts should be treated.

And these rules reflect a legislative judgment on how to balance the public's need for safety, the public's need for compensation if safety is lacking, on the one hand, and the national need for a domestic uranium industry that is not subject to uncontrolled, unstructured tort liability.

Justice O'Connor: I'm concerned, Mr. Atwood, frankly, with the procedural posture of this case.

Now, the district court entered kind of a two-part decision.

It said Price-Anderson Act claims could not proceed in tribal court.

Mr. Atwood: Correct.

Justice O'Connor: But other claims could.

Mr. Atwood: Claims under tribal law could, yes.

Justice O'Connor: All right, and then an appeal was taken to the Ninth Circuit.

Mr. Atwood: By petitioners.

Justice O'Connor: By you, by petitioners, and the Ninth Circuit decided a question that wasn't appealed.

Mr. Atwood: As well as a question that was appealed, that's correct.

Justice O'Connor: Well, and it didn't decide other questions.

Now, what should we do here?

Should we just decide that it had no authority, if you will, to decide a question that wasn't appealed?

Mr. Atwood: No.

We would certainly hope...

Justice O'Connor: I mean, I would think we would do that.

Mr. Atwood: I... we agree the Court should vacate that portion of the court of appeals decision that allowed Price-Anderson cases to proceed in tribal court because in our view...

Justice O'Connor: That wasn't appealed.

Mr. Atwood: that issue was not appealed.

Justice Kennedy: Right.

Mr. Atwood: That's correct.

But what was appealed, and which is therefore proper... the court had jurisdiction over, and this Court has jurisdiction, over the question whether the tribal law claims could properly proceed.

Justice O'Connor: But the court, the Ninth Circuit didn't really deal with that, did it?

Mr. Atwood: It affirmed the denial of a preliminary injunction that we requested.

It... so its order does allow, incorrectly, in our view, the tribal law claims to proceed in tribal court.

That issue was properly before the court of appeals jurisdictionally.

They decided it wrongly.

Justice O'Connor: I thought it really didn't get to the merits of that.

Mr. Atwood: No, it... it decided two issues.

It affirmed the denial of the injunction that we sought, and it reversed sua sponte the grant of the other part of the injunction that we sought.

So there's clearly one very important substantive issue that came up properly jurisdictionally, and that is the question, were the tribal law claims preempted by the Price-Anderson Act.

Justice Kennedy: On the issue where the court of appeals reversed and it was not appealed, in a sense, it's not your fault.

You don't have the duty to appeal a favorable ruling.

Mr. Atwood: Right.

Justice Kennedy: On the other hand, the court of appeals is in somewhat of a difficult position if it feels that the unappealed ruling and its rationale are logically necessary for its decision on the part that is appealed.

Justice Breyer: I'm not quite sure what the court of appeals should have done.

Mr. Atwood: Well, there... I think there is a distinction between what orders were before the court and what orders are before this Court, and therefore what the relief should be, with the question of how broad the analysis needs to be to properly decide the issues that are before the Court.

And it is perfectly understandable, I think, that the Ninth Circuit and this Court, in deciding the preemption issues that are presented, would want to analyze the totality of the relationship of the Price-Anderson Act regime with what has happened in this case.

So it is certainly possible that the substantive analysis would be somewhat broad, but then when you get down to an appropriate relief, in our judgment it should be to reverse the court of appeals insofar as it allowed the tribal court causes of action to go forward and to vacate the court of appeals judgment insofar as it prohibited Price-Anderson claims from going forward.

We...

Justice Scalia: Mr. Atwood, let me tell you my problem with that.

It seems to me that that asks us to decide a question which, in the light of the question that you want us to forego, may well be utterly academic.

That is to say, if Price-Anderson claims can be brought in tribal court, contrary to the injunction here that you want us to leave in place, if they can be brought in tribal court, then it makes no difference... it is asking an academic question whether you will allow the tribal court to consider and will allow it to exhaust whether a particular claim is a Price-Anderson claim or not a Price-Anderson claim.

That question is a nonquestion if both claims can be brought in tribal court, and you don't want us to reach the question of whether both claims can be brought in tribal court.

You say that's been decided, and that injunction wasn't appealed, so forget about that question.

But unless that question is answered in the opposite way from the way the district court answered it, namely, answered to say you cannot bring... I'm sorry, you can... you... yes... no... the way the district court answered it.

Mr. Atwood: Yes, the... right.

Justice Scalia: You cannot bring Price-Anderson claims in tribal court, then the question of whether a particular claim is Price-Anderson or not Price-Anderson never arises, and why should we sit here and deliberate on that question, and ask whether the tribal court can decide that question, and it must be exhausted, when it may well be a question that never arises?

Mr. Atwood: Well, there certainly are differences, though, substantively, in how a tribal law claim would proceed and how a Price-Anderson claim would proceed.

Also, let me say we're not...

Justice Souter: What are... are you going to tell us what they are?

Mr. Atwood: Yes, I'd be happy to.

Well, assuming you could have a Price-Anderson claim in tribal court?

Justice Stevens: Yes.

Mr. Atwood: Which we don't think you can have.

Justice Souter: Right, but assume...

Mr. Atwood: If there could be Price-Anderson claims in tribal court, again which we do not agree with, Federal standards of care would be relevant.

In other cases, not this one, there would be indemnity issues that would be relevant.

Justice Souter: So you're saying that borrowing... borrowing in tribal law does not explain all that's going on.

If you're going to have a Price-Anderson claim, you're going to have something beyond just borrow tribal law so the two actions are not identical.

Mr. Atwood: Not... no.

They are not... indeed, you would not borrow tribal law under Price-Anderson.

You would borrow State law.

Justice Scalia: So the issue...

Mr. Atwood: Arizona law would apply in tribal court, not tribal law.

Justice Scalia: So the issue will arise in tribal court even if... even if Price-Anderson actions are allowable in tribal court, tribal courts will still have to decide whether a particular claim is Price-Anderson or not Price-Anderson?

Mr. Atwood: If Price-Anderson claims were properly held in tribal court, that would be a judgment the tribal court would have to reach.

We do not think tribal courts...

Justice Scalia: Yes, I understand.

Mr. Atwood: do have authority, and we're not...

Justice Scalia: I just don't want to decide something, you know, that may be irrelevant if Price-Anderson can be brought in tribal court.

Mr. Atwood: And it may be that what is necessary because of the procedural errors of the Ninth Circuit... we're not opposed to this Court deciding all the substantive issues it feels it has an adequate record for.

We're not opposing a full resolution of the preemption and jurisdictional issues, but we did think it was necessary to bring to the Court's attention what we perceive to be a jurisdictional error in the court of appeals, and that obviously can have implications for the scope of the ruling of this case.

Justice Kennedy: Well, could the court of appeals have said, we're going to resolve the tribal claim issues, and in light of that resolution the district court must have been wrong in its injunction, assuming it came out that way.

Then what does it do?

We're remanding to the district court so that it has the opportunity in the first instance to reconsider its ruling or something?

It's a preliminary injunction.

It's not really a...

Mr. Atwood: It is a preliminary injunction.

Justice Kennedy: the case for all time, if...

Mr. Atwood: That's right.

Justice Kennedy: the case at all.

Mr. Atwood: And respondents make the point that the issue would come back up to the court of appeals eventually on a permanent injunction.

That's absolutely right, but I... you know, we do think it is a matter of concern that the court of appeals felt it had the authority to reach down and take... and rule upon, and indeed rule upon it incorrectly, an order that wasn't before it.

Justice Scalia: Well, it may not come back.

I mean, you don't know for sure that it can come back to the court of appeals.

It depends on the outcome of the trial, I suppose.

Mr. Atwood: Well, and also it depends on what the...

Justice Scalia: And on who wins.

Mr. Atwood: And what the respondents want to do.

They have so far, at least up until this phase of the litigation, eschewed Price-Anderson claims.

They were very clear in saying, we want to proceed solely under tribal law, we're not interested in pursuing under Price-Anderson, and they demonstrated that by not appealing the injunction against proceeding under Price-Anderson, so we are dealing with potential future events.

But it does seem to us clear under the statute that Price-Anderson preempts the tribal law claims.

The congressional language is absolute in saying, any claim for nuclear torts such as this may be brought only under the terms of Price-Anderson, and four courts of appeals have all decided that that language preempts State law claims.

And now, indeed, for the first time in this Court, respondents concede that it preempts tribal law claims, and they now are arguing something a little different.

They're saying their claims are not Price-Anderson because they involve mining and because there's no indemnification agreement.

We don't think those arguments were properly preserved, but we also think, as does the Solicitor General, that they are clearly wrong.

Justice Ginsburg: But they weren't passed on below, those... the argument that it's not Price-Anderson because it involves mining, and... or there's no indemnification in this picture, the Ninth Circuit didn't touch those.

Mr. Atwood: In fact, the mining issue wasn't even raised with the Ninth Circuit.

The indemnification issue was, but not decided.

Justice Breyer: I'm... now, I thought I understood it, and now I realize I don't.

That is, I thought that initially the... your... the plaintiff files a claim in the tribal court.

Mr. Atwood: Right.

Justice Breyer: And it says, now, my relatives or others were killed, and... because of the nuclear waste, the nuclear mining, and we... we're entitled, as a result of negligence law, four other laws... and I don't think they mentioned Price-Anderson, did they?

Mr. Atwood: They did not.

Justice Breyer: All right... they didn't even mention it.

Chief Justice Rehnquist: All right.

Justice Breyer: Now it comes to the district court, and the district court says, your motion for an injunction... that is, yours... is denied.

They denied it.

Mr. Atwood: In part.

Justice Breyer: Well, they denied it, and then he adds the words to the order, except insofar as the defendant seeks relief under the Price-Anderson Act in tribal court, which he hadn't done.

So since he'd never... since... the only way I can imagine to read that is that the exception's irrelevant, because he didn't.

Nowhere in the complaint does it assert... does it... nowhere does he seek relief under the Price-Anderson Act in tribal court.

He didn't.

Mr. Atwood: Well, I think what that...

Justice Breyer: And then it comes to the court of appeals, and the court of appeals goes into the discussion of whether or not a negligence claim is preempted, and whether you can assert whether it's preempted or not in the tribal court of the district court, the kind of issue that's been briefed here.

So once... isn't... I mean, there's a lot of briefs here about whether the Price-Anderson Act covers a negligence claim, and it makes a very strong claim that it does, because it's a claim of negligence that arises out of nuclear waste.

You know, we know those arguments that are being made.

Mr. Atwood: Right.

Justice Breyer: All right.

So now I don't know what to do.

Mr. Atwood: But Justice Breyer, I think there was an injunction issued...

Justice Breyer: Oh, it says except... yes, you're right, except to the extent the defendant seeks relief...

Mr. Atwood: Yes.

Justice Breyer: under the Price-Anderson Act.

Mr. Atwood: And we were required... we posted a bond, so all the elements of the normal preliminary injunction.

I think... it is true they were not then seeking, but that is an injunction against an effort for them to try to convert tribal law claims under Price-Anderson.

Justice O'Connor: All right.

Justice Breyer: Suppose we issue the following order, which I think would take one paragraph.

Suppose you said, very well, you considered, court of appeals, a claim that had never been raised.

You can't.

End of the matter.

Now go consider the rest.

All we'll get is the same opinion back, but...

Mr. Atwood: Well, but... no, that leaves out a series of important errors that the court of appeals made with respect to the injunction that did not issue.

They concluded that it was necessary for us to exhaust tribal remedies on the question of whether or not tribal law claims were proper, and that's where we and the United States strongly disagree.

Price-Anderson clearly preempts those claims, and with respect to those claims there should be no exhaustion requirement because it would be very wasteful and it would frustrate this congressional scheme of having Price-Anderson nuclear tort claims, that is, all of which must be Price-Anderson claims, handled in a coordinated, operative fashion, so that's a critical element of the court of appeals decision.

Justice O'Connor: But that's only if we assume that all their claims are preempted by Price-Anderson.

Mr. Atwood: But... that's correct, but it is clear that on the face of what they allege, those are Price-Anderson claims.

They are claiming injury from radioactive consequences of uranium, uranium...

Justice O'Connor: But that gets us into all these issues about what Price-Anderson preempts, and whether it covers uranium mining at all, and these have not been decided by a lower court.

Mr. Atwood: Well, it is...

Justice O'Connor: And all of a sudden you want...

Mr. Atwood: Yes.

Justice O'Connor: us to decide all of this.

I don't understand.

Mr. Atwood: One option available to this Court is to tell the district court and the court of appeals, you should address the substance of the preemption argument, that your decision on exhaustion was wrong.

You should not require 6 years of litigation in tribal court before any Federal judge decides the preemption issue.

You should... this Court could decide the issue, or it could remand the preemption issue and simply tell the court of appeals, your exhaustion ruling was incorrect.

Justice Kennedy: Was there any suggestion or any possibility of interlocutory determination in the tribal court of the preemption issue, just as a matter of law, before the trial on the merits?

Mr. Atwood: That was...

Justice Kennedy: In Strate there was actually a jurisdictional ruling all the way through the tribal system, and then the Federal courts...

Mr. Atwood: It was not attempted in this case.

There's another case somewhat predating ours in tribal court, the Kerr-McGee case, where an interlocutory review on the preemption issue was sought in tribal court.

It was denied, so the judgment of these people was it was futile, and as the Solicitor General argues, we think that under a complete preemption statute, that preemption issue should be decided by the Federal court, not by the tribal court.

Justice Ginsburg: Mr. Atwood, as I understand it, what you are trying to do essentially is to make a substitute for the removal that Congress didn't provide with respect to tribes.

If exactly the same case involved a State court action and the plaintiff had said, my action is State law and nothing to do with Price-Anderson, you could wrench that out immediately and have the Federal court decide that, not possible because Congress didn't provide that mechanism.

Is there any clue why the tribal courts were left out of the removal when all the State courts in the land were included?

Mr. Atwood: It was... obviously the statute is silent.

It was not addressed anywhere that we've seen in the legislative history, but I think the answer is, you don't need a removal provision when a claim is improperly brought in tribal court, because you have available under the National Farmers Union case, under the Strate holding, you have available a Federal cause of action under 1331 because the tribe has exceeded its authority.

You don't have...

Justice Ginsburg: But with Farmers, that's at the end of the line, but the removal takes the case out of the State court and, indeed, there's a transfer provision if you bring it in any Federal court, other than the one where the site is.

Mr. Atwood: Farmers says you can sue immediately in Federal court.

It then says you then have to engage in an analysis of whether or not exhaustion is appropriate, but you can go to Federal court, and there is no equivalent to 28 U.S.C. 2283.

There's no anti-injunction provision that acts, that prevents the Federal court from acting, so we were properly before Federal court.

There is the relevant question, should we have to exhaust first.

And there I think you have to engage in the kind of analysis that we and the Solicitor General do as to what is the prudential rule for a Federal cause of action where there is no meaningful role for the tribe to play in informing about the relevant law.

We think in that situation the Federal court should decide the issue before it.

Argument of Jonathan E. Nuechterlein

Chief Justice Rehnquist: Thank you, Mr. Atwood.

Mr. Nuechterlein, we'll hear from you.

Mr. Nuechterlein: Mr. Chief Justice, and may it please the Court:

The parties agree that the Federal courts have Federal question jurisdiction to decide at some point whether these nuclear tort claims brought initially under tribal law fall within the preemptive scope of the Price-Anderson Act.

The question here is whether the prudential rule of tribal court exhaustion delays the date on which the Federal courts will decide that issue, even though, as Justice Ginsburg points out, if this suit had been filed in State court, the Federal courts would indisputably decide that issue now.

The answer is that the tribal exhaustion doctrine does not have that anomalous consequence, and the reason is specific to the Price-Anderson Act.

The act deems any claim for public liability brought under any source of law to be a Federal claim arising directly under Price-Anderson.

Congress designed that complete preemption regime to make Federal court review available from the inception of any nuclear tort suit.

Congress took that step because it wanted to make nuclear tort litigation more predictable, more uniform, and more efficient, because it wanted to ensure consolidation of any related cases, and because it wished to ensure centralized control over compensation claims.

Application of the...

Justice O'Connor: Well, respondents now put forward an argument that the personal injury claims under tribal law are not preempted, that in the case of uranium mining and where there is no indemnity, that that isn't the scheme.

Mr. Nuechterlein: We disagree.

Justice O'Connor: Nobody has addressed that in the lower courts, presumably.

Mr. Nuechterlein: That is correct, and we dis...

Justice O'Connor: In this case.

Mr. Nuechterlein: That is correct.

We disagree with that argument on the merits, but the initial point is that there... there is a dispute about which court will resolve that issue in the first instance.

Respondents claim that the tribal exhaustion doctrine requires the tribal courts to decide that issue in the first instance.

Our position is that that would be inconsistent with the point of this statutory scheme, which is to ensure that the defendant has an absolute right to a Federal forum for the resolution of any dispute about the effect of the Price-Anderson...

Justice Scalia: Yes, but why isn't the...

Justice O'Connor: So what do you advise that this Court do in the face of the kind of curious posture in which the case comes here?

Mr. Nuechterlein: One option this Court has is to reverse the Ninth Circuit on the threshold exhaustion issue, and to remand to the lower courts for a substantive determination as to whether respondents' claims in fact fall within the preemptive scope of the Price-Anderson Act.

If they do, then those claims are properly litigated in Federal court.

If they do not, then it may be that the tribal courts would retain jurisdiction over the suit.

Justice Souter: I was going to... you may have touched on what I was going to ask, but I'm not sure that I understand your argument for complete preemption, because I thought your argument for complete preemption was, Congress has clearly decided that these things ought to be resolved in Federal forums, and yet one of the issues before us, albeit one that was not passed on by the lower courts, was whether this particular... whether the claims here fall within the concept of public liability.

I mean, I was going to say, isn't the argument essentially circular, because there's no way we can deal with the exhaustion issue without... or any court can, without first dealing with the issue of whether the claims here are within the umbrella of public liability.

Mr. Nuechterlein: I disagree with that.

Congress anticipated there would be circumstances where the parties would disagree about whether the Price-Anderson Act is applicable, and whether Price-Anderson rules would therefore apply.

Congress wanted any dispute like that to be in Federal court from... if... at the election of the defendant.

Justice Souter: Why didn't... if it's as simple as that, why didn't it simply provide for a broad removal provision?

Mr. Nuechterlein: It did provide a removal provision for State courts, and it also...

Justice Souter: Yes, but I mean, not for tribal courts.

Mr. Nuechterlein: That's correct, and it is probably the case that Congress was simply not thinking about tribal courts when it enacted this law, so the question then is, would it... would it violate congressional intent to permit Price-Anderson suits to persist in tribal court, despite what appears to be a clear statutory preference for having all Price-Anderson claims litigated in Federal court.

Justice Souter: Of course, if we... in answering that question, if we say, well, Congress is presumed to know the way, you know, the courts do business, I think your position would run up against this difficulty, and that is that the instances that you point to outside of Price-Anderson for the concept of what you call complete preemption in your brief were, I think... and correct me if I'm wrong... all instances in which there was an express removal provision.

Mr. Nuechterlein: That's correct, but by enacting a complete preemption statute Congress signals its intent to have all litigation within a particular sphere to occur in Federal court and also...

Justice Souter: Yes, but your examples of complete preemption prior to this case are all examples in which there is a removal provision, is that not correct?

Mr. Nuechterlein: But the point here is that there is no need for a removal provision, because everybody agrees the Federal courts have Federal question jurisdiction to address...

Justice Souter: Sure, but that begs the question of exhaustion.

Mr. Nuechterlein: No, it doesn't beg the question of exhaustion, because again, the very process of exhausting tribal remedies in this context would frustrate this statutory scheme.

The whole point of the statutory scheme is to give defendants an absolute right to choose a Federal forum for litigation, not just of claims that are deemed to be within Price-Anderson, but also of any threshold dispute about whether claims in fact fall within Price-Anderson.

That is clearly the congressional intent, and the question here...

Justice Souter: And you say this is the congressional intent without reference to this background set of cases that exemplify complete exhaustion under other statutory regimes.

You say that conclusion can be drawn from the Price-Anderson Act alone.

Mr. Nuechterlein: That conclusion clearly follows from the Price-Anderson Act, and you can tell that but not just from the enactment of a removal provision, but also from Congress' taking the extra step of deeming any action asserting public liability to be a claim arising within the scope of the Price-Anderson Act itself.

Justice Ginsburg: Mr. Nuechterlein, is there any clue that Congress contemplated tribes at all, because when it talked about how the substantive law would be shaped, it mentioned State law.

Mr. Nuechterlein: That is correct.

Justice Ginsburg: It provided for removal, but it seems that it just wasn't thinking about the tribes.

Mr. Nuechterlein: That is correct, and it is significant that Congress provided that substantive State law would apply in Price-Anderson suits.

That, of course, may be different from the law that tribes would apply, and on top of that, it's also important to remember that the removal statute itself was originally enacted in 1966.

The 1988 amendments expanded the scope of the removal statute to extend beyond extraordinary nuclear occurrences to include all nuclear incidents, of which we claim these suits are an example, but there's no indication anywhere in the legislative history that Congress contemplated that tribal courts would adjudicate these claims.

And the important point also is that tribal court adjudication of these claims without any mechanism for transfer to a Federal court which would have centralized control over the litigation and centralized control over compensation funds would present all of the problems that motivated Congress in 1988 to expand the removal provision at issue here.

It would clearly frustrate this statutory scheme to permit suits to proceed in tribal court over the objection of the defendant.

Ultimately, on the merits issue the parties address, we agree with petitioners that these tort suits do, in fact, fall within the scope of the Price-Anderson Act.

That follows from the plain language of the definitions of nuclear incident and public liability as they appear in section 2014.

Justice Ginsburg: But you agree that that question should get a first view by a lower court.

Mr. Nuechterlein: I think that is one appropriate disposition, although the answer to the question is clear enough to us that I think that it would also be appropriate for this Court to decide it in the first instance.

Justice Kennedy: If we reverse on the ground that exhaustion is not required, what does the Ninth Circuit do with reference to the unappealed order?

Mr. Nuechterlein: Well, that... that unappealed order would remain intact if this Court were to apply ordinary jurisdictional rules, so ultimately what might happen is, respondents would return to district court to claim that, notwithstanding any answer to the question of whether these claims fall within Price-Anderson, that a tribal court may nonetheless adjudicate Price-Anderson claims.

They would ask the district court at that point to lift that preliminary injunction and would then litigate that issue on the merits.

Justice Scalia: And what's the Government's position on the merits question of whether you can bring Price-Anderson claims in the tribal courts?

Mr. Nuechterlein: Our position is that it would be inconsistent with the whole point of the scheme to allow these suits to proceed over the objection of a defendant in tribal courts, because that would present exactly the same litigation problems that motivated Congress to enact the 1988 amendments.

Justice Souter: But absent objection, do they have jurisdiction?

Mr. Nuechterlein: Yes, in the same way that State courts would have jurisdiction in the absence of an objection from the defendant.

Justice Scalia: What's the basis for the objection?

I don't...

Mr. Nuechterlein: The basis... it would...

Justice Scalia: Sort of a cheap removal provision?

Mr. Nuechterlein: Well, it's not a removal provision.

Justice Scalia: You just object to its presence there?

Mr. Nuechterlein: It's taking advantage of this Court's holding in National Farmers Union that there is a Federal common law cause of action to challenge the jurisdiction of tribal courts.

Justice Scalia: Well, I'm sure there is a cause of action to challenge it, but that doesn't say that there isn't any jurisdiction.

It just says there is available a cause of action to challenge it.

What is the basis for saying there's no jurisdiction?

Mr. Nuechterlein: The cause of action would be that the exercise of jurisdiction over the objection of the defendant would be inconsistent with the structure of the Price-Anderson Act and therefore inconsistent with Federal law.

Argument of H. Bartow Farr, III

Chief Justice Rehnquist: Thank you, Mr. Nuechterlein.

Mr. Farr, we'll hear from you.

Mr. Farr: Thank you, Mr. Chief Justice, and may it please the Court:

Before turning to the jurisdictional question that makes this case, I think, particularly perplexing as it comes to this Court, I would like just to take a moment at the outset to explain why I think the decision below, assuming for a moment that the court of appeals had the power to render it, was, in fact, a proper accommodation of the Price-Anderson Act and the doctrine of tribal exhaustion.

First of all, the decision below carried forth both Congress' policy of respecting the jurisdiction of tribal courts and also, in particular, its policy of allowing tribal plaintiffs to choose tribal courts as a forum.

That policy is reflected in the absence of removal provisions generally from tribal courts.

Justice Scalia: By the decision below, you don't mean the unappealed order.

You mean...

Mr. Farr: I mean the entire decision below, in fact.

Justice Scalia: The entire... so... all right.

Mr. Farr: That's correct.

I think the court of appeals... and I will obviously get to the point of whether it had the power to render it, but I think in fact by addressing both the unappealed part of the order and the appealed part of the order the Ninth Circuit came out in the right place.

In addition to this respect for the right of tribal courts and tribal plaintiffs, what the court did was avoid the problem of having litigants running back and forth between the Federal and the tribal courts, which is a central idea behind the idea...

Chief Justice Rehnquist: Well, you could avoid that at the other end of the spectrum, too.

Mr. Farr: I'm sorry.

Chief Justice Rehnquist: I say, you could avoid running back and forth between tribal courts and Federal courts at the other end of the spectrum, too, and say that the... rule against your contentions in all respects.

Mr. Farr: That would be true, but the fact is that the tribal exhaustion doctrine in its basic core element is intended to say, unless there is a clear lack of jurisdiction in the tribal courts, the idea is that the issues with respect to jurisdiction are considered first by the tribal court and then subsequently by the Federal court, and that's exactly the regime that the Ninth Circuit decision restores in this case.

At the end of the district court proceedings, essentially you had a case that was half in Federal court with the issue that petitioners were appealing being left essentially to the tribal courts, and half in Federal court with the issue that the respondents did not appeal being part of the Federal decision-making.

So in the end it seems to me that, confronted with a split case, the Ninth Circuit did what would make the most sense, assuming it had the power to do it, which is to say, let's let the tribal courts decide both of these issues in the first place.

And one particular point I think that bears on that is that if, in fact, the district court is incorrect that tribal courts lack power over Price-Anderson actions, then, in fact, the other question, the question that petitioners were asking the Ninth Circuit to consider, is irrelevant to jurisdiction.

It doesn't make any difference whether this is a public liability action or not for purposes of determining tribal court jurisdiction, if, in fact, tribal courts have a jurisdiction, whether it is or not.

Justice Breyer: Well, how could they?

That is to say, what possible reason could Congress have if... suppose a nuclear power plant leaks, you know, so it's quite clearly the kind of thing that Price Anderson is concerned about.

The nuclear power plant leaks, and now every State action, of which there would be thousands, the defendants can remove to Federal court immediately.

That's absolutely clear Congress wants that to happen.

Now, what reason could Congress have for saying in such a case that although we got all these actions in Federal court and out of State court, nonetheless we want them to proliferate over in the tribal courts?

I mean, I grant you, somebody could logically say that, but what practical reason or other reason would there be for that?

Mr. Farr: Justice Breyer, I think we have to look at two things.

The first is that tribal court jurisdiction by its nature is very limited.

It only arises in situations in which there are activities on tribal land, with very few exceptions, activities that arise on tribal land that injure tribal members, or perhaps in certain cases where non-Indians essentially are required to bring their suits under Williams v. Lee.

But the basic idea is that tribal courts only have jurisdiction in a very narrow territorial area, and of course there aren't any nuclear power plants on tribal...

Justice Breyer: No, what we have is a leak, you know, and there's a cloud, and it goes and hurts some people.

Mr. Farr: Right, but that I think would not be a case that's subject to tribal court jurisdiction, because in fact...

Justice Breyer: Well, once you say that, what's the...

Mr. Farr: The activity did not occur on the tribal reservation, so...

Justice Breyer: Well, what if they find there's a truck that goes through, the truck, and the truck leaks nuclear material, so... all I'm looking for is an example which clearly is within Price-Anderson.

Now, once we have the example, and it happened there was a truck... we can imagine... just... it's not that hard to think of a case.

Mr. Farr: I understand, but I think...

Justice Breyer: Now, what reason could there possibly be that Congress would have wanted to take all those cases out of State court, which, by the way, are very used to dealing with all kinds of litigation, but nonetheless are brought into Federal court for consolidation purposes, and yet nonetheless Congress would have wanted to let those cases proliferate in the tribal courts.

That's where I'm having difficulty.

Once you say that you want... Congress really wanted them out of State court into Federal court, I can't find a good, convincing reason why they would have wanted them to stay in the tribal court.

That's why I'm asking the same question.

Mr. Farr: This is why I think the example does make a difference.

The general practice of Congress is to allow tribal plaintiffs to choose the tribal court forum for events that arise on tribal lands, so if you look at any of the other cases in which there are Federal jurisdiction, Federal question jurisdiction under section 1331, diversity jurisdiction situations in which the same argument could be made that Congress has provided for removal from State courts, Congress in fact has not provided...

Justice Stevens: Do you think, Mr. Farr, that was a deliberate decision by Congress not to allow removal from tribal courts, or do you think they just overlooked it at the time they enacted the removal statute?

Mr. Farr: In the Price-Anderson Act specifically, or generally?

Justice Stevens: Generally, because you make the general point that, unlike most plaintiffs, tribal plaintiffs don't have to worry about the defendant removing even if there's diversity jurisdiction.

Mr. Farr: That's right.

I'm not sure that the decision at first was deliberate, Justice Stevens.

But I think that by now the idea that cases are not removable from tribal court is a familiar principle, and certainly Congress has not revisited that.

And also in the most specific example that we have, after a Federal court of appeals held that a suit against a Federal officer in tribal court was not removable, the Justice Department asked the Congress, in fact, to amend the removal statute to provide... that would be 1442... to provide for removal in those cases, and Congress did not enact it, so I think the idea that Congress...

Justice Scalia: Which proves what, which proves that Congress did not... that Congress thought it was a bad idea?

Mr. Farr: It doesn't necessarily prove that.

Chief Justice Rehnquist: It doesn't.

Mr. Farr: What I'm suggesting, though, is that Congress seems, by not providing in any situation for removal from tribal court, in the end to be suggesting a special solicitude for tribal plaintiffs to choose tribal courts as their forum.

Congress has demonstrated a concern for the tribal courts themselves, of course, and then in addition to that it seems to me that in the cases where you have injuries arising on tribal lands, and the injured parties are tribal members, that Congress reasonably would think, consistent with that policy, that those suits should be brought in tribal court.

Justice Scalia: So that's...

Chief Justice Rehnquist: When you say, injuries on tribal lands, what particularly was the allegation of the complaint here, that there was some activity of the defendants on tribal lands?

Mr. Farr: That's correct.

The defendants in these cases were on tribal lands.

These are lands that are owned in trust for the tribes.

Chief Justice Rehnquist: Mining uranium, or...

Mr. Farr: That's correct.

In one... in both cases they are open pit uranium mines.

In one situation, the injuries are said to arise from the... essentially the abandonment of the pits, and they're filling up with water, and then families using the water as drinking water and other... for other reasons which caused injury.

In the other, it's a situation essentially of particulate in the air as a result of the mining operations.

But all of this occurs on tribal land in essentially the core part of the Navajo reservation, so back to Justice Breyer's question for a moment.

First of all, I begin with the proposition then that Congress has generally allowed tribal plaintiffs...

Justice Breyer: Wait, I can put you on easier ground, I think, and I think you may have this... because suppose I thought... let's assume I do think this, which I think I do basically, that if Congress had a statute, that statute says, look, this is a certain kind of action, we do not want this ever brought in a State court.

We want this brought in Federal court no matter what.

Never, never, never bring it in a State court, and they simply happen to forget saying, and by the way, we mean tribal courts, too.

If I saw a statute like that, it wouldn't take me long to say, they want it brought in Federal court, period.

They just forgot about tribal courts, or didn't mention it.

But that isn't our case, because our case is a case where there's one set of things that fall within the statute that we'll imagine says that, but the question, I take it, here is, and if you have some instances where it isn't clear whether you have this kind of an action or not this kind of an action, who's to decide that?

Mr. Farr: Well, that's true, and...

Justice Breyer: And so what's your argument there?

Assume with me, in other words, contrary to your interests, that in the clear case, a Price-Anderson case, that's the district court's position.

You have something everybody agrees in the Price-Anderson Act, it goes to Federal court.

You have something that there's disagreement about whether it goes to tribal... whether it's in the Price-Anderson Act or not, as to that one the question is, who is to decide whether it's within or without, and on that question you say go to tribal court.

Mr. Farr: That would still be in the tribal court.

Justice Scalia: The SG disagrees with you.

Justice Breyer: The SG says that will wreck the act.

That will wreck the act on the assumption that I'm talking about, that you say, and that's my question.

Mr. Farr: Well, I don't think it will, Your Honor, for several reasons.

First of all, it only wrecks the act on the assumption that the answer to the question is that the claim is a Price-Anderson claim, which we think is, in fact, the wrong answer to that question.

But secondly, the fact is that the tribal exhaustion doctrine is not some novel principle.

The tribal exhaustion doctrine is basically a representation of the usual principle of comity that says, when you have a pending proceeding in another court, it's not the business of the Federal court to jump in and tell that court it can't adjudicate the...

Justice O'Connor: Well, that would be the same thing in a State court situation.

If the mining occurred on... in the jurisdiction of the State, not tribal law, one would normally let the State courts decide that, if that's where the plaintiff sued.

Mr. Farr: That's correct, Justice O'Connor.

Justice O'Connor: But Congress has said no, has provided for removal, right?

Mr. Farr: That's correct.

Justice O'Connor: And here, no similar language is included for removal from tribal courts.

Mr. Farr: Correct.

Justice O'Connor: So we have to figure out what to do in the absence of such language.

Mr. Farr: That's correct, but the point that I'm making, and back again to Justice Breyer's question, is that it seems to me instructive that the failure to provide for removal from tribal courts in this case is not an exception to the Congress' normal practice of providing for removal from tribal courts.

To the contrary.

If, in fact, one thought removal was necessary in this case, either directly or through some sort of second-hand removal creation by a combination of the 1331 lawsuit, that would be the first time, in fact, that it was ever attributed to Congress an intention to allow a defendant to remove a case that was otherwise properly, under all principles of Federal Indian law, within the jurisdiction of the tribal court.

Justice Scalia: We do have those cases.

I mean, there they are.

Mr. Farr: Well...

Justice Scalia: We've done it in other areas, and you're saying it's shocking here.

I mean, what's the difference?

I mean, the argument you're making is an argument against all of the cases which say that you have a 1331 cause of action to get it out of the tribal court.

Mr. Farr: No, I'm not arguing that there isn't a cause of action.

What I'm suggesting, though, is that the second part of the National Farmers decision is that even though there is jurisdiction under 1331, essentially it's not exercised unless the lack of jurisdiction in the tribal court is clear.

Justice Scalia: But don't make a comparison to how we treat State courts, because you couldn't have a 1331 action to yank a case out of a State court that way, could you?

Mr. Farr: No, you could not, but what I'm suggesting, it's not a... it's not the difference between the way this Court treats State courts, it's the way the Congress treats removal from State courts and tribal courts.

It provides generally for removal from State courts.

Chief Justice Rehnquist: But the 1331 cause of action isn't yet filled in.

I mean, it's entirely made by this Court, really.

Granted, 1331 provides the basis for it, but Congress might well have thought that that is the, you know, adequate substitute for removal.

Mr. Farr: Well, I think in a situation where it was clear that the tribal court did not have jurisdiction, that it would properly serve through a lawsuit brought under 1331 an injunctive power to bring the case, at least foreclose it in tribal court, if not bring it into Federal court.

The 1331 action, of course, is a different action from what you get with a removal petition.

If you file a removal petition, what the Federal court is asked to decide is its own jurisdiction, does it have jurisdiction over this claim, and the question will be whether it arises under Federal law.

Complete preemption principles may be relevant to that.

But here the question is not, does the Federal court have jurisdiction over this case.

It's whether the tribal court lacks jurisdiction over the case, and that... an order that precedes that says, to...

Justice Stevens: But, of course, the reason the tribal court lacks jurisdiction, if it does, is because Congress has said all these cases belong in Federal court.

Mr. Farr: Well, to begin with, Congress has not said that they all belong in Federal court as such.

They certainly may remain in State court.

At most...

Justice Stevens: If the defendant wants them there.

Mr. Farr: At most what Congress would have said is, if the defendant wants them there, and the point I'm making about the lack of provision for removal from tribal courts generally is that that's exactly what all removal statutes do.

All removal statutes say, if it's a Federal question case, and the defendant wants it in Federal court, it goes to Federal court.

If it's a diversity case and it meets the requirements, the defendant wants it in Federal court, it goes to Federal court.

What's different about the Price-Anderson Act?

That's all...

Justice Ginsburg: Mr. Farr...

Mr. Farr: That's all they're pointing to here.

Justice Ginsburg: I think there is something different, and that's what I'd like to get down to.

I understand talking in these abstract categories, but you have conceded, if I read your brief correctly, that if the tribal court plaintiffs claims are, indeed, as Mr. Atwood tells us they are, public liability claims, they cannot survive as something else.

If the Price-Anderson covers the waterfront, you cannot characterize it as something else.

I believe that you have said that a few times in your brief.

Mr. Farr: That's correct.

Justice Ginsburg: So if the question is, how sweeping is the Price-Anderson Act, does it cover mining, does it cover situations where there's no indemnification, why isn't it logical that a Federal court should decide that purely Federal question?

If we look at the Farmers and LaPlante, there were some things that involved, maybe fact determination, maybe some input from tribal law, but here, the question is, the sweep of the Price-Anderson Act has nothing to do with anything other than how broad Congress wanted to make that, and so why should the exhaustion requirement apply to a question of what is the scope of a law passed by Congress to govern nuclear incidents?

Mr. Farr: I think the answer to that, Justice Goldburg, goes back to the basic idea why the exhaustion doctrine exists at all.

I do not think that it is necessary that the issue that is... the jurisdictional issue that is part of exhaustion be one that tribal courts have particular expertise with regard to.

I think it is sufficient to justify the tribal exhaustion doctrine under traditional principles of comity that the suit was originally filed in tribal court, and the tribal court has asserted jurisdiction over it.

Justice Ginsburg: But you can't get all the way there just from Farmers and LaPlante, because, as the Chief pointed out, those were decisions not... where we weren't guided by anything Congress said.

The Court essentially created that.

Mr. Farr: I'm not saying that those decisions necessarily foreclose any evolution, essentially, in the 1331 cause of action.

What I'm saying is that I think the proper application of the tribal exhaustion doctrine is essentially to leave matters affecting the jurisdiction of a tribal court to the tribal court in the first instance when there is a pending tribal court proceeding.

And what is being asked in the 1331 proceeding is that a Federal court take the highly unusual step of declaring that another court lacks jurisdiction over the claims it's presently hearing.

It seems to me that, unless that lack of jurisdiction in the tribal court is clear, then Federal courts are really overstepping the proper bounds of injunctive power under usual principles of comity.

Also, it does seem to me that one runs the risk of having just what you have here.

As Justice Kennedy pointed out earlier, you essentially have a case which then goes up to a court of appeals essentially in a mixed condition, because in our view the district court should not have decided that tribal jurisdiction is foreclosed over... under public liability actions.

We think under a proper demonstration of the principles of National Farmers, that question was also properly left to the tribal court.

Chief Justice Rehnquist: But that wasn't appealed, was it?

Mr. Farr: That was not appealed, and let me just say for one moment, I actually think that the court of appeals did have jurisdiction to consider the unappealed part of the order and to reverse that part.

That is a jurisdiction that should be sparingly exercised, but I think the usual principles that say, once a court acquires jurisdiction independently over a part of a case, it then has jurisdiction over the entire case, and the power to dispose of the entire case is essentially the controlling principle here.

The decision in Morley is, I think, probably the biggest obstacle to that point, but I think there are a couple of responses to that.

First of all, if one looks at the cases cited in Morley, although Morley itself certainly talks in terms of power, a number of the cases talk in terms of waiver, or something amounting to a waiver, or a loss of the right to insist on the appeal, language which suggests really more about the loss of a litigant's right to insist upon a decision and less... goes less to the question of the power of the court.

Justice Scalia: Oh, but they're all categorical, whether it's based on jurisdiction or not.

What they say is... and they're certainly as categorical as Morley was, which was... I mean, it couldn't have been more categorical.

Mr. Farr: Well, to begin with, the case that deals with the issue most directly, Langes, is categorical the other way.

Justice Scalia: Langes doesn't deal with the issue.

Langes, its discussion of this issue is dictum, because what was involved was in fact not the failure to raise an issue, but the failure to make an argument.

It wasn't...

Mr. Farr: Right.

I understand it's dictum.

Justice Scalia: So anything it said was dictum, and it has dictum on both sides.

As I read our prior cases, they are all categorical when they say that you simply can't do it.

Mr. Farr: Well, but the question is, are they saying you can't do it because you lack the power to do so?

If so, those cases, it seems to me, have not explained the answer to the point I just made.

If courts generally can exercise pendent jurisdiction, ancillary jurisdiction, supplemental, whatever the right term is, over parts of a case over which there is no independent basis of jurisdiction, once it does have a basis of jurisdiction over the initial part of the case, what is there that is so different about the notion of a cross-appeal that would take it out of that rule?

Justice Scalia: I don't know, but we've said so.

Unidentified Justice: [Laughter]

Mr. Farr: I don't think that one has said so as a matter of binding authority.

I don't think that...

Chief Justice Rehnquist: We have a case in point, like Morley.

Certainly one thing about jurisdiction, it ought to be clear.

It ought not to have a lot of... you know, somebody we feel sorry for and make a little exception to it.

Certainly Morley is dead against you in this case.

Mr. Farr: Well, let me suggest two things if I may, Mr. Chief Justice.

First of all, while I don't generally dispute the idea that jurisdictional rules ought to be clear, one of the difficulties is, in fact, that the more rigorous the cross-appeal becomes, the more difficult, in fact, it is for litigants, because they wind up being unsure of what issues they can in fact raise in defense of the parts of the case that they won below and, indeed...

Chief Justice Rehnquist: Well, why not just cross-appeal when in doubt?

Mr. Farr: Well, that is a possible solution to the rule, but I think... in the first place I don't think litigants typically... for example, this case is not a bad example.

As a result of the injunction against petitioners, they were not able to proceed with claims deemed to be Price-Anderson in tribal courts, but at the time, none of the claims that they had brought in tribal court had yet been deemed to be...

Chief Justice Rehnquist: You said petitioners.

You mean respondents.

Mr. Farr: I'm sorry.

Excuse me.

I do mean respondents.

None of the claims that they had brought had been deemed to be Price-Anderson claims, so in terms of a practical effect, the injunction had none at that point.

It was a preliminary injunction.

It was subject to review when made final, so in fact a cross-appeal here, and obviously in retrospect it would have been much wiser to have taken one, but a cross-appeal here would have essentially caused them to go up to the court of appeals and complain about an order that was causing them no immediate harm.

Justice Breyer: Why do you care?

I mean, you have nothing in the complaint, or virtually nothing that alleges violation of Price-Anderson.

I mean, almost all your... I thought all of them, but maybe there's one that isn't... that you seem to allege things like negligence, et cetera, which you're saying don't fall within Price-Anderson.

Mr. Farr: Well, I think...

Justice Breyer: So why do you care?

Mr. Farr: Justice Breyer, I think there are two points, and I think it's important to keep them clear.

Our... we have a basic position which is, these claims are simply not Price-Anderson claims.

They are not within the scope of the claims...

Justice Breyer: You want to say even if they were.

Okay.

I see that.

Let me... can I ask you one other question?

Mr. Farr: But may I make...

Justice Breyer: Yes.

Mr. Farr: just one final point.

I think if, in fact, they are within the scope of Price-Anderson claims, then I think there is a little bit of a misunderstanding about what the effect of that is.

I don't think there is any requirement for claims to be Price-Anderson claims, that they be pled as Price-Anderson claims.

The act deems them to be Price-Anderson claims if they're within the terms of the act.

We say they're not, but if they are, the act, by its own force, turns them into Price-Anderson claims.

Justice Breyer: Could you say one word on that, just what... I mean, I just don't want you to sit down without saying one other thing.

I'll put it specifically so you have a chance to say it, but that the... you look at the Price-Anderson Act and it says, with respect to any public liability action resulting from a nuclear incident, Federal courts have jurisdiction.

Then it defines a public liability action really to be any action where somebody is claimed to owe money to a member of the public arising out of a nuclear incident.

Then it defines nuclear incident to mean any occurrence that causes sickness or death or injury arising from the radioactive properties of nuclear material.

Well, QED.

What is there for them to decide if we send it back?

What they're saying is, QED.

All the claims in this complaint are Price-Anderson claims, because they all allege injury arising... to a member of the public arising out of radioactive material.

End of the matter.

Now, what's your response to that?

Mr. Farr: I think there are two real problems... excuse me... with reading the language the way that that would, frankly, naturally seem to be read.

You wind up with two linguistic anomalies.

First of all, you wind up with, under petitioner's reading, a public liability action against defendants, who are not liable for public liability.

The linchpin of a public liability action is that it asserts public liability, but it isn't asserting public liability against anybody who is responsible for public liability in this case.

Justice Breyer: Public liability meaning liability to a human being, namely, a member of the public.

Mr. Farr: Right.

That's what...

Justice Breyer: All right, so why don't we say that?

If you put it in that language, what's the problem?

Mr. Farr: But it has to be public liability... the liability has to be on behalf of a defendant who is liable for public liability.

Justice Breyer: Well, they're saying there is a defendant here.

They say, the El Paso Natural Gas Company is liable to me, a member of the public.

Mr. Farr: But the fact is, under the definition of persons indemnified, which is 2014(t), which includes all persons who are possibly liable for public liability, there has to be an indemnification agreement or financial protection where that doesn't apply.

Justice Stevens: Mr. Farr, do you argue... I just want to be sure I get this question in.

Do you challenge the fact that there's a nuclear incident alleged?

Mr. Farr: The... in general I think not, but the question is...

Justice Stevens: I understand your argument about the public liability action, but...

Mr. Farr: Reading it in... the language as it moves through the definitions seems to lead to one conclusion.

Our position is, if it's read in context, you cannot come to the conclusion that you can have a public liability suit against persons who aren't liable for public liability and furthermore...

Justice Stevens: But you're saying that even if one assumes it's a nuclear incident.

Mr. Farr: That would still be our position, right.

And our second point, though, which also goes to the language, is that the claim has to... is deemed to arise under section 2210.

The question is, what is there in section 2210 that this claim arises under?

Section 2210 is a compensation scheme which covers public liability, it channels public liability to those persons having indemnification and in... and required insurance, and then it provides for suits to recover within that scheme.

That's what section 2210 does.

None of that applies here.

There's no required insurance.

There's no indemnity by the Government.

Justice Ginsburg: Those are the questions about the scope of Price-Anderson, and the question before us is, who decides, and the very good argument that you are making now, you're saying should be addressed in the first instance to a tribal court and not to a Federal court.

Mr. Farr: If it's jurisdictional at all...

Justice Ginsburg: Even though it's a very intricate question of Federal statutory interpretation, and has no... that part of it has no tribal law element to it at all.

Mr. Farr: Regardless of the fact that it doesn't have a tribal court element, we still think that when a litigant goes into Federal court and says, stop the jurisdiction that is being exerted by this other court, that unless the lack of jurisdiction in that other court is clear both from jurisdictional and from substantive provisions, it is the role of the other court to make the initial determination about jurisdiction, and that's all we're asking here.

That is the tribal court here in the first instance that is subject to later review after that decision has been made.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Farr.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o'clock.