Opinion
Civil Action No. 00-2165-CM
May 2, 2001
MEMORANDUM AND ORDER
This matter is before the court on motions, by defendant Glacier Petroleum Inc., to dismiss Counts II, III, and IV (Doc. 7) and to dismiss Count I (Doc. 18) of the complaint. Counts II, III, and IV were voluntarily dismissed by the plaintiff, so the defendant's motion is moot. The motion to dismiss Count I is granted because the plaintiff failed to follow the statutory procedure to file suit under the Oil Pollution Act of 1990.
I. Background
Plaintiff, Prairie Band of Potawatomi Indians, sued after defendant, Glacier Petroleum, Inc., allegedly spilled 3,000 gallons of crude oil in Jackson County, Kansas. The oil allegedly seeped into Big Soldier Creek, damaging plaintiff's land and natural resources. The plaintiff sued under the Oil Pollution Act of 1990, 33 U.S.C. § 2701 et seq., and the Clean Water Act, 33 U.S.C. § 1365 et seq., to recover damages and restore its property to the pre-spill condition.
II. Counts II, III and IV
Pursuant to plaintiff's notice of voluntary dismissal (Doc. 11), and in accordance with Fed.R.Civ.P. 41(a)(1)(ii), the court hereby dismisses Counts II, III, and IV. The court also dismisses Carole Browner as a party to the suit, pursuant to plaintiff's voluntary dismissal. Defendant Glacier Petroleum, Inc.'s motion to dismiss Count II (Doc. 7) is, therefore, moot.
III. Count I
The only remaining count, Count I, requests recovery under the Oil Pollution Act of 1990 ("OPA") to restore plaintiff's lands and natural resources. Defendant's second motion (Doc. 18) requests dismissal of Count I because plaintiff failed to designate a tribal official to act as a trustee for natural resources, as required by the OPA.
To recover under the OPA, an Indian tribe must appoint a trustee "who may act on behalf of the tribe or its members." 33 U.S.C. § 2706 (b)(4) (2000) (stating "The governing body of any Indian tribe shall designate tribal officials . . ." (emphasis added)). The statute requires the trustee to "assess natural resource damages" and "develop and implement a plan for the restoration, rehabilitation, (and) replacement" of natural resources after an oil spill. Id. at § 2706(c)(3)(A-B).
The Code of Federal Regulations further illuminates a trustee's duties and provides the procedure for recovery under the OPA. 15 C.F.R. § 990.10-990.66 (2001). A trustee must perform his duties in three phases: a preassessment phase, in which he files public notice, sends the notice to the party responsible for the oil spill, and opens an administrative record; a restoration planning phase, in which he makes a damage assessment (by determining injury and quantifying damage) and creates a restoration plan subject to a period of public review and comment; and, a restoration implementation phase, in which he sends a written demand to the responsible party for costs of the assessment and implementation of the plan. The trustee, after completing these steps, may file suit only if the responsible party does not agree to implement or fund the restoration plan. Id. at § 990.64.
For a description of these phases, see General Elect. Co. v. United States Dep't of Commerce, 128 F.3d 767, 770-771 (D.C. Cir. 1997).
The OPA does not allow a party to bypass the trustee phase and file suit. The statute instead establishes a hybrid administrative-judicial process for assuring full compensation for damages to natural resources. Compare 33 U.S.C. § 2702, 2706, and 2717(f)(1)(B) with 15 C.F.R. § 990.10-990.66, especially § 990.64.
Although the scheduling order required plaintiff to respond to defendant's second motion to dismiss by April 2, 2001 (Doc. 22), the plaintiff failed to respond. The court is not required to inquire into the merits of the case when the respondent does not file a response. "If a respondent fails to file a response . . . the motion will be considered and decided as an uncontested motion, and ordinarily will be granted without further notice." D. Kan. R. 7.4. In the interests of justice, however, the court chooses to look at the merits of plaintiff's complaint. From the face of the complaint, it appears plaintiff did not designate a trustee and did not complete the requisite stages prior to filing suit. Because of plaintiff's failure to comply with the Oil Pollution Act of 1990, which sets forth the procedure for recovery, the complaint is hereby dismissed.
IT IS THEREFORE ORDERED that defendant's motion to dismiss (Doc. 18) is granted. Defendant's motion to dismiss the remaining counts (Doc. 7) is moot, as the plaintiff voluntarily dismissed those counts.