United States Liable as an Owner Under CERCLA for Contamination on Navajo Reservation Land

Last week, a United States District Court in Arizona held that the United States was an “owner” of Navajo Reservation Trust Land for purposes of CERCLA liability.  See El Paso Nat. Gas Co. v. United States, 2017 WL 3492993 (D. Ariz. Aug. 15, 2017).  After entering into an Administrative Order on Consent with the United States Environmental Protection Agency to undertake certain assessments at various mine sites, El Paso Natural Gas Company (EPNG) sued the United States Government seeking contribution from the United States for its part in developing and sustaining the uranium mining industry in the United States.  EPNG alleged the United States was liable as an owner, operator and arranger under CERCLA.  Although the United States’ liability as an operator and arranger will be determined at trial, the Court granted summary judgment on the issue of owner liability.  The Court concluded the United States was an owner of the Navajo Reservation lands for purposes of CERCLA because the United States holds fee title to the Navajo Reservation and retains substantial powers over the land including the power to enter, control alienation, and take.  As indicated in the decision, the scope of the United States’ interest in Reservation land may vary, thus whether the United States is an owner for purposes of CERCLA will need to be evaluated for each Reservation.

This decision will have far reaching implications for other contaminated sites on Navajo Reservation land, and similarly situated lands. This decision provides significant leverage to companies responsible for uranium mine contamination as well as persons who have been impacted by the contamination to have the United States Government accept its equitable share of responsibility based on the Government’s creation and promotion of the uranium industry for the nation’s defense.  In the context of generally contaminated orphan sites on Navajo Reservation land where a viable responsible party previously did not exist, this decision provides the Tribe with a basis to compel the United States to clean up those sites.

Parties responsible for contamination on Reservation land now have the opportunity to raise equitable arguments and seek contribution, as well as have leverage to force the United States to reconsider overly expensive remedies, without first establishing that the United States was an operator or arranger under CERCLA.  The United States may also give greater consideration to what constitutes a reasonable remedy in light of the fact that it also has responsibility for the clean-up costs.