Opinion
Civil Action 1:21-cv-02474-RMR-SKC
07-13-2023
COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT, HAZARDOUS MATERIALS AND WASTE MANAGEMENT DIVISION, Plaintiff, v. USA, et al., Defendants.
RECOMMENDATION RE: PARTIAL MOTION FOR
JUDGMENT ON THE PLEADINGS [DKT. 45]
S. KATO CREWS, UNITED STATES MAGISTRATE JUDGE
Starting in 1942, the United States Army used a Colorado property known as Rocky Mountain Arsenal (the Arsenal) to manufacture and dispose of chemical warfare agents and other hazardous substances.Dkt. 5 at ¶13. Until 1981, the Army and Shell Oil Company disposed their hazardous waste in a service impoundment unit in the Arsenal called Basin F. Id at ¶¶16-18. Although the Army and Shell stopped using Basin F in 1981, hazardous waste remained, and the Arsenal was considered “one of the worst hazardous waste pollution sites in the country.” United States v. State of Colo., 990 F.2d 1565, 1569 (10th Cir. 1993) (quoting Daigle v. Shell Oil Co., 972 F.2d 1527, 1531 (10th Cir. 1992)).
In 1976, Congress enacted the Resource Conservation and Recovery Act (RCRA) “to assist the cities, counties and states in the solution of the discarded materials problem and to provide nationwide protection against the dangers of improper hazardous waste disposal.” Id. (quoting H.R.Rep. No. 1491, 94th Cong., 2d Sess. 11 (1976)). RCRA requires the Environmental Protection Agency to establish performance standards applicable to owners and operators of hazardous waste, treatment, and storage facilities. Id. Under RCRA, the EPA may authorize states to develop and carry out their own hazardous waste programs in lieu of those under the Act. See 42 U.S.C. § 6926(b). “Any action taken by a State under a hazardous waste program authorized under [the Act] [has] the same force and effect as action taken by the [EPA].” Id. § 6926(d).
Based on this authority, Colorado enacted the Colorado Hazardous Waste Act (CHWA)-which is enforced by Plaintiff Colorado Department of Public Health and Environment (the Department)-and promulgated regulations that mirror rules issued by the EPA. See Colo. Rev. Stat. §§ 25-15-301 to -327; 6 Colo. Code Regs. § 1007-3:100.10. Relevant here, the Department requires “[o]wners and operators of hazardous waste management units [to] have permits during the active life (including the closure period) of the unit.” 6 Colo. Code Regs. § 1007-3:100.10. And for those “units that received waste after July 26, 1982, or that certified closure . . . after January 26, 1983, [the owners or operators] must have post-closure permits . . . or obtain an enforceable document in lieu of a post-closure permit.” Id.
In 2016, the Department conducted a records review and inspection of the Arsenal, including the Rocky Mountain Arsenal National Wildlife Refuge (the Refuge), which is managed by the United States Fish and Wildlife Service. During the review, the Department discovered Defendants had not applied for either a postclosure permit or permission for an alternate enforceable agreement in lieu of a permit, in violation of 6 Colo. Code Regs. § 1007-3:100.10. Dkt. 5 at ¶¶44-45. As a result, the Department filed an earlier action in this Court asserting both federal and state law claims. Colorado Dep't of Pub. Health & Env't, Hazardous Materials & Waste Mgmt. Div. v. United States, 381 F.Supp.3d 1300 (D. Colo. 2019) (First Action). The Department's federal claim was ultimately dismissed, and then District Judge Raymond P. Moore declined to exercise supplemental jurisdiction over the state law claim. Judge Moore closed the case on August 2, 2021.
On August 26, 2021, the Department filed the present case in Adams County District Court, reasserting its state law claim regarding post-closure permits. Defendants removed the matter to this Court on September 13, 2021, and it was randomly drawn to District Judge Regina M. Rodriguez. Defendants initially filed a Motion to Dismiss under Fed.R.Civ.P. 12(b)(6), Dkt. 16, which Judge Rodriguez denied. Dkt. 33. Defendants have now moved for partial judgment on the pleadings, arguing this Court should enter judgment in favor of both the United States and Fish and Wildlife. Dkt. 45. For the reasons discussed below, the Court respectfully recommends the Motion be GRANTED IN PART and DENIED IN PART.
ANALYSIS
Defendants contend judgment should be entered in favor of the United States because it has not waived sovereign immunity under RCRA. They further contend Fish and Wildlife is entitled to judgment because the Department's claim against it is preempted by the Rocky Mountain Arsenal National Wildlife Refuge Act (the Refuge Act) of 1992, PL 102-402, October 9, 1992, 106 Stat 1961. The Court agrees in part.
A. Sovereign Immunity
In the First Action, and citing 42 U.S.C. § 6961 regarding the application of federal, state, and local law to federal facilities, the United States argued the claim against it should be dismissed because it had not waived sovereign immunity as to the Department's claims under RCRA. Colorado Dep't of Pub. Health, 381 F.Supp.3d 1300, 1311 (D. Colo. 2019). Section 6961(a) provides, in relevant part:
Each department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any solid waste management facility or disposal site, or (2) engaged in any activity resulting, or which may result, in the disposal or management of solid waste or hazardous waste shall be subject to, and comply with, all Federal, State, interstate, and local requirements, both substantive and procedural (including any requirement for permits or reporting or any provisions for injunctive relief and such sanctions as
may be imposed by a court to enforce such relief), respecting control and abatement of solid waste or hazardous waste disposal and management in the same manner, and to the same extent, as any person is subject to such requirements, including the payment of reasonable service charges. The Federal, State, interstate, and local substantive and procedural requirements referred to in this subsection include, but are not limited to, all administrative orders and all civil and administrative penalties and fines, regardless of whether such penalties or fines are punitive or coercive in nature or are imposed for isolated, intermittent, or continuing violations. The United States hereby expressly waives any immunity otherwise applicable to the United States with respect to any such substantive or procedural requirement (including, but not limited to, any injunctive relief, administrative order or civil or administrative penalty or fine referred to in the preceding sentence, or reasonable service charge).Id.
In his analysis, Judge Moore observed that although the first sentence of Section 6961(a) specifies compliance by departments, agencies, and instrumentalities of the Federal Government, “the ‘United States' then ‘expressly [waived] any immunity . . . with respect to any such substantive or procedural requirements” under State and local laws. Id. at 1312 (citing 42 U.S.C. § 6961(a)). Applying principles of statutory construction, Judge Moore concluded, therefore, Congress had specifically waived sovereign immunity as to the United States. Id. at 1313.
Despite this previous holding, the United States argues it is entitled to judgment because, contrary to Judge Moore's conclusions, the statute does not specifically waive sovereign immunity such that the Department can make a claim against the United States as a whole. Dkt. 33 at pp.5-10. For itself, the Department contends, inter alia, this Court should apply the law of the case doctrine and consider this argument to have been resolved. Dkt 49 at pp.9-10. In its Reply, the United States maintains that this Court need not follow Judge Moore's previous holding. Dkt. 53 at p.6 n.1.
The law of the case doctrine “developed to maintain consistency and avoid reconsideration of matters once decided in the course of a single continuing lawsuit.” Kennedy v. Lubar, 273 F.3d 1293, 1298 (10th Cir. 2001) (quoting 18 Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction § 4478, at 788 (1981)). The doctrine is “solely a rule of practice and not a limit on the power of the court.” Mason v. Texaco, Inc., 948 F.2d 1546, 1553 (10th Cir. 1991) (citing Messinger v. Anderson, 225 U.S. 436, 444 (1912)). “The law of the case doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” United States v. Monsisvais, 946 F.2d 114, 115 (10th Cir. 1991) (cleaned up).
The parties had a full and fair opportunity to make the same arguments regarding sovereign immunity in the First Action. See Smith Mach. Co. v. Hesston Corp., 878 F.2d 1290, 1293 (10th Cir. 1989) (collecting cases and conditioning the invocation of law of the case on a party's prior opportunity to have fully and fairly presented and argued its claims). The question was thoroughly considered by two separate judicial officers with Judge Moore ultimately disagreeing with the United States. The United States did not appeal Judge Moore's determination on sovereign immunity after he dismissed that case.
In addition, but for Judge Moore's declination of supplemental jurisdiction over the state law claim, his conclusions regarding sovereign immunity would still govern these parties. To be sure, while the basis for federal question jurisdiction in the First Action lapsed in June 2020, the parties-including the United States-proceeded through discovery until the case closed in January 2021. And even though Defendants argued the court lacked supplemental jurisdiction, they also acknowledged that if Plaintiff filed the state law claim in the Colorado courts, they would immediately remove the matter to federal court, which they did. And here we are.
While the present matter was filed years after the First Action, this matter involves the same state law claim, the same parties, and the same nucleus of operative facts as the First Action. Indeed, the present matter took the circuitous route of pending in this Court before Judge Moore, being filed by the Department in state court after Judge Moore dismissed the federal claim and refused to exercise jurisdiction over the state law claim, and then Defendants removed the state law claim back to this Court where it was randomly drawn to a different presiding judge.For all intents and purposes, this is the same case that was pending before Judge Moore.
Consequently, the Court recommends finding this is effectively the same case such that the law of the case doctrine applies and Judge Moore's previous ruling between these parties concerning the United States' waiver of its sovereign immunity under Section 6961(a) continues to apply. The Court, therefore, recommends Defendants' request to enter judgment in favor of the United States be denied.
B. Preemption Doctrine
Defendants seek judgment in favor of Fish and Wildlife on the basis that the Department's claim against it is preempted by the Refuge Act. In response, the Department argues that despite being under the jurisdiction of Fish and Wildlife, the Refuge nevertheless remains part of the Arsenal, which is a hazardous waste facility subject to the CHWA. Even accepting the Department's proposition that the Refuge remains part of the Arsenal, the Court nevertheless agrees with Defendants that the state law claim is preempted.
Under the Property Clause of the United States Constitution, Congress is empowered to exercise “jurisdiction over lands within its limits belonging to the United States....” Wyoming v. United States, 279 F.3d 1214, 1226 (10th Cir. 2002). As a result, a state's jurisdiction “over federal land ‘does not extend to any matter that is not consistent with full power in the United States to protect its lands, to control their use and to prescribe in what manner others may acquire rights in them.'” Id. (quoting Utah Power & Light Co. v. United States, 243 U.S. 389, 404 (1917)). “If Congress so chooses, federal legislation, together with the policies and objectives encompassed therein, necessarily override and preempt conflicting state laws, policies, and objectives under the Constitution's Supremacy Clause, U.S. Const. art. VI, cl. 2.” Id. (citing Kleppe v. New Mexico, 426 U.S. 529, 543 (1976)). Thus, the core inquiry on this issue is discerning Congress's intent in establishing the Refuge.
Congress created the Refuge in 1992 by mandating the transfer of Arsenal land-excluding those areas used for water treatment, hazardous waste storage, treatment, and disposal, and other purposes related to the Arsenal-from the Secretary of the Army to the Secretary of the Interior. See Refuge Act, PL 102-402, October 9, 1992, 106 Stat 1961. Fish and Wildlife manages the Refuge “for wildlife and public use purposes” in accordance with the National Wildlife Refuge System Administration Act of 1966 and other laws. Id. at Sec. 4(b)(1)-(2). These purposes include, among others, “conserv[ing] and enhanc[ing] populations of fish, wildlife, and plants within the refuge;” protecting “species listed as threatened or endangered under the Endangered Species Act;” and “provid[ing] opportunities for compatible environmental and land use education.” See Id. at Sec. 4(c)(1)-(8). Noticeably missing from the list of purposes is any mention of remediation or responsibility for hazardous waste cleanup or compliance with related statutes. Id. Instead, the Refuge Act plainly states that Fish and Wildlife's management (as described above) is subject to the Army's continuing responsibilities under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and other provisions of law, such as RCRA. Id. at Sec. 2(a)(B)(2).
It is undisputed that the Army's responsibilities under CERCLA apply to those areas of land excluded from the Refuge transfer, such as Basin F. And the Department acknowledges the Army's responsibilities also apply to the land now known as the Refuge. See Refuge Act, PL 102-402, October 9, 1992, 106 Stat 1961. at Sec. 3(a). The Department maintains, however, that the Army's continuing responsibilities under CERCLA and RCRA do not prevent Fish and Wildlife from also being liable under those statutes. Dkt. 49 at pp.12-13. Specifically, the Department relies on Section 3(b)(1) of the Refuge Act, which states: “Nothing in this Act shall relieve, and no action may be taken under this Act to relieve, the Secretary of the Army or any other person from any obligation or other liability at the Arsenal under [CERCLA] and other applicable provisions of law.” Id. at p.13 (citing PL 102-402, October 9, 1992, 106 Stat 1961. at Sec. 3(b)(1)) (emphasis added).
But interpreting “other person” to also include Fish and Wildlife overlooks the fact that Section 3 is specifically limited to the “Continuation of Responsibility and Liability of the Secretary of the Army for Environmental Cleanup.” Refuge Act, PL 102-402, October 9, 1992, 106 Stat 1961. at Sec. 3. And given the specificity with which Congress defined the purposes of Fish and Wildlife's management of the Refuge, and Congress's specific reservation of environmental cleanup responsibilities to the Army, it is “highly unlikely . . . Congress would carefully craft [those] substantive provisions of the [Refuge Act] . . . and then essentially nullify those provisions and regulations with a single sentence.”Wyoming, 279 F.3d at 1235.
Having considered the plain language of the Refuge Act as a whole, the Court concludes Congress intended for the Army to have sole responsibility and liability under CERCLA, RCRA, and state laws such as the CHWA. The Department's request for injunctive relief compelling Fish and Wildlife to comply with the post-closure permitting requirement would conflict with Congress's intent and ultimately result in duplicative efforts by the Army and Fish and Wildlife.
Thus, the Court recommends finding the Department's claim against Fish and Wildlife is preempted by the Refuge Act and its designation of responsibilities. Colorado Dep't of Pub. Health & Env't, Hazardous Materials & Waste Mgmt. Div. v. United States, 693 F.3d 1214, 1224 (10th Cir. 2012) (“A state law also is pre-empted if it interferes with the methods by which the federal statute was designed to reach [its] goal.”).
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For the reasons shared above the Court RECOMMENDS Defendants' Partial Motion for Judgment on the Pleadings be GRANTED IN PART and DENIED IN PART.