ML20209D904

Litigation Rept - 1999 - 3

ML20209D904
Person / Time
Issue date:	06/24/1999
From:	Cordes J NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
References
SECY-99-164, SECY-99-164-01, SECY-99-164-1, SECY-99-164-R, NUDOCS 9907140078
Download: ML20209D904 (29)

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June 24, 1999 SECY-99-164 EO_J:

The Commission FROM:

John F. Cordes, J Solicitor

SUBJECT:

LITIGATION REPORT - 1999 - 3 El Paso Natural Gas Co. v. Neztsosie. No. 98 6 (U.S. Supreme Court, decided May 3,1999)

This case raised complex jurisdictional questions under the Price-Anderson Act. The underlying lawsuits were filed in Navajo Tribal Courts and claimed damages against the owners of abandoned uranium mines and mills for claimed adverse health effects. The owners sought a federal court injunction against continuation of the tribal court suits on the ground that

" nuclear tort" claims arise exclusively under the federal Price-Anderson Act and lay outside the jurisdiction of tribal courts: The lower courts refused injunctive relief and required the owners to exhaust their tribal court remedies. The Supreme Court then took up the case. The Solicitor General filed an amicus curiae brief urging reversal.

The Court, in an opinion by Justice Souter, reversed, embracing the position taken in the government's amicus brief. The Court decided that the usual doctrine requiring defendants in 3

tribal court to exhaust tribal court remedies does not apply in the Price-Anderson Act context, which preempts state and tribal law. The Court held that the mine and mill owners were entitled to insist that federal courts, not tribal courts, decide the question whether plaintiffs' claims in hg'b o

fact fall under the Price-Anderson Act.

a We worked closely with the Department of Justice and the Department of Energy on the government's amicus brief and on the oral argument in this case.

CONTACT: Marjorie S. Nordlinger 415-1616 Thermal Science. Inc. v. NRC, No. 98-3147 (8* Cir., stay order issued May 28,1999) in this longstanding lawsuit, Thermal Science, Inc. (TSI), seeks to derail NRC consideration of a

$900,000 civil penalty for alleged misstatements regarding its Thermo-Lag fire retardant product. Last summer the district court dismissed the lawsuit as premature, and TSI appealed.

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Both the district court and the court of appeals refused to stay further administrative proceedings pending the appeal.- in May, however, after the NRC staff had completed its l

review of TSl's response to the proposed civil penalty, and decided to impose it, subject to an

- opportunity for an ASLBP hearing, TSI retumed to the court of appeals for a stay and this time

' the Court granted it.'

Thus, further administrative proceedings are stayed until the court of appeals decides TSI's pending appeal. The court heard oral argument on the appeal in March, and a decision.

therefore could come at any time.

CONTACT: : Charles E. Mullins

'415-1618 Eastern Navalo Dine Aaainst Uranium Minina v. NRC. Nos.99-1190,99-1194,99-1195,99-1196 (D.C. Cir., filed May 20 and May 25,1999)

These four lawsuits all challenge partial initial decisions issued by the presiding officer in the pending Hvdo Resources adjudication. All four decisions currently are the subject of petitions for review pending before the Commission. The lawsuits, therefore, are in our view premature,

'l and we shortly will move to dismiss them, CONTACT:

Brooke D. Poole 415-2490 DISTRIBUTION:

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4 El Paso Natural Gas Co. v. Neztsosie, No. 98-6

- (U.S. Supreme Court, decided May 3,1999) -

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(Bench opimon)

OCTOBER TERM.1998 1

Syllabus NOTE: Where n is feasible. a syDabus (headnote) wtH be released. as is being done in conrecuan with this case, at the ume the opuuon is issued.

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uuon of the coun but has inen Wedst$sN"t!a'n TuNn$$umI co 2 3. t SUPREME COURT OF THE UNITED STATES Syllabus EL PASO NATURAL GAS CO. ET AL. v. NEZTSOSIE ET AL CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 98-6. Argued March 2.1999-Decided May 3.1999 As relevant here, the Price-Anderson Act provides certain federal licen-sees with limited liability for claims of 'public liability" arising out of or resulting from a nuclear incident, converts such actions into fed-eral claims, grants federal district courts removal jurisdiction over such actions, and provides the mechanics for consolidating the ac-tions and for managing them once consolidated. Respondents filed snarate lawsuits in Navajo Tribal Courts, claiming damages for in-

. Juries suffered as a result of uranium mining operations. Petitioners, defendants in those suits, each filed suit in Federal District Court, seeking to enjoin respondents from pursuing their tribal court claims.

Citing the tribal court exhaustion doctrine of Nationa1 Farmers Union Ins. Cos. v. Crow Tribe. 471 U. S. 845, the District Court denied pre-Mminary injunctions except to the extent that respondents sought relief in the Tribal Courts under the Price-Anderson Act. The practical con-sequences of the injunctions were left in the air, however, since the Dis-trict Court left the determinations whether the Act applied to respon-dents ~ claims to the Tribal Courts. On petitioners ' consolidated appeals, the Ninth Circuit affirmed the District Courtt decisions not to enjoin respondents from pursuing non Price Anderson Act claims and to allow the Tribal Courts to decide whether respondents' claims fell under that Act. Although respondents had not appealed the partial injunctions, the Ninth Circuit, citing important comity considerations, sua sponte j

reversed them.

Held:

1. Because the partial injunctions were not properly be~ fore the Court of Appeals, it erred in addressing them. Absent a cross-appeal, an appellee may urge in support of a decree any matter appearing in 4

2 EL PASO NATURAL CAS CO. v. NEZTSOSIE Syllabus the record, but may not attack the decree with a view either to en-larging his own rights thereunder or lessening his adversary h rights.

UnitedStates v. American Railway Express Co. 265 U. S. 425,435. The Ninth Circuit acknowledged the rule. but took up the unappealed por-tions of the orders sua sponte because it believed that the prohibition on modifyingjudgments in favor of a nonappealing party is a

• rule of practice" subject to exceptions rather than an unqualified bound on the jurisdiction of appellate courts. This Court need not decide the theoretical stat':s of the rule, for even if it is not strictly jurisdic-tional, the " comity considerations

• the Ninth Circuit invoked are clearly inadequate to defeat the institutional interests the rule ad-vances. Indeed, not a single one of this Court h holdings has ever rec-ognized an exception to the rule. Respondents misconceive the na-ture of the cross appeal requirement when they argue that they should not be penalized for failing to cross appeal from preliminary injunctions because they could raise the same issue on appeal from the finaljudgment. The requirement is meant not to penalize parties who fail to assert their rights but to protect institutional interests in the orderly functioning of the judicial system by putting opposing parties and appellate courts on notice of the issues to be litigated and encouraging repose of those that are not. Fairness of notice does not turn on the interlocutory character of the orders at issue here, and the interest in repose, though somewhat diminished when a final ap-peal may yet raise the issue, is still considerable owing to the indefi-1 nite duration of the irjunctions. Pp. 4-7, j

2. The doctrine of tribal court exhaustion does not apply in this 1

case, which if brought in a state court would be subject to removal.

Pp.8-13.

(a) This case differs markedly from those in which tribal court

- exhaustion is appropriate. By the Price Anderson Act h unusual pre-I emption provision. 42 U. S. C. 52014(hh), Congress expressed an un-mistakable preference for a federal forum, at the behest of the de-fending party, both for litigating a Price-Anderson claim on the merits and for determining whether a claim falls under the Act when j

reinoval is contested. Petitioners seek the benefit of what is in effect the same scheme of preference for a federal forum when they ask for an injur.ction against further litigation in the tribal courts. The is-sue, then, is whether Congress would have chosen to postpone federal resolution of the enjoinable character of this tribal coun litigation.

'i when it would not have postponed federal resolution of the function-ally identical issue pending in a state court. Pp. 8-11.

(b) The apparent reasont, for the congress!onal policy ofimmed:-

ate access to federal forums are as much applicable to tribal-as to state-court litigation. *lhe Act provides clear indications of the con-

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(1999) 3 Syllabus gressional aims of speed and efficiency in the provisions addressing consolidation and management of

cases, e.g.,

42 U. S. C. 52210(n)(3)(A). The Act h terms are underscored by its leg-islative history, which expressly refers to the multitude of separate rases brought in the aftermath of the Three Mile Island accident and adverts to the expectation that the consolidation provisions would avoid inefficiencies resulting from duplicative determinations of similar issues in multiple jurisdictions. Applying tribal exhaustion would invite precisely the mischief of duplicative determinations and consequent inefficiencies that the Act sought to avoid, and the force of the congressional concerns deprives arguablejustifications for ap-plying tribal exhaustion of any plausibility in these circumstances.

Pp.11-13.

136 F. 3d 610, vacated and remanded.

SOUTER, J., delivered the opinion for a unanimous Court.

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(1999) 1 Opinion of the Court nb pr m na Urut ates R s R ad rs are req d

g on C 5[3 of haca ro 1e rs. n or that correcuons may te made ho're the prehmmary print goes to press SUPREME COURT OF THE UNITED STATES No. 98-6 EL PASO NATURAL GAS COMPANY, ET AL, PETITIONERS v. LAURA NEZTSOSIE ET AL ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

[May 3,1999]

JUSTICE SOUTER delivered the opinion of the Court.

The issue is whether the judicially created doctrine of tribal court exhaustion, requiring a district court to stay its hand while a tribal court determines its own jurisdic-i tion, should apply in this case, which if brought in a state court would be subject to removal. We think the exhaus-tion doctrine should not extend so far.

I With the object of "encourag[ing] the private sector to become involved in the development of atomic energy for J

peaceful purposes," Duke Power Co. v. Carolina Environ-

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mental Study Group, Inc., 438 U. S. 59, 63 (1978), Congress passed the Atomic Energy Act of 1954,68 Stat. 919, a broad scheme of federal regulation and licensing. Because it

'soon became apparent that profits from the private ex-ploitation of atomic energy were uncertain and the accom-i panying risks substantial," Duke Power, supra, at 63, in 1957 Congress amended the AEA with the Price-Anderson Act 71 Stat. 576. Price-Anderson provided certain federal

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licensees with a system of private insurance, Gove'rnment f

indemnification, and limited liability for claims of 'public

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EL PASO NATURAL GAS CO. v. NEZTSOSIE Opinion of the Coun liability " now defined generally as "any legal liability arising out of or resulting from a nuclear incident or pre-cautionary evacuation...." 42 U. S. C. 52014(w). The Act defines 'huclear incident" as "any occurrence...

within the United States causing... bodily injury, sick-ness, 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...."

S2014(q).2 -

In the wake of the 1979 accident at the Three Mile Island nuclear power plant, suits proliferated in state and

. federal courts, but because the accident was not an "ex-traordinary nuclear occurrence," within the meaning of the Act, see 52014(l), there was no mechanism for consoll-dating the claims in federal court. See S. Rep. No.100-218, p.13 (1987).

Congress responded in 1988 by amending the Act to grant United States district courts original and removal jurisdiction over all 'public liability actions,"102 Stet.1076,42 U. S. C. 52210(n)(2), defined as suits " asserting public liability," S2014(hh), which "shall 1

be deemed to be... action [s] arising under"S2210. The Act now provides the mechanics for consolidating such actions,52210(n)(2), for managing them once consolidated, S2210(n)(3), and, for distributing ' limited compensatory funds, $2210(o).

In 1995, respondents Laura and Arlinda Neztsosie, two members of the Navajo Nation, filed suit in the District Court of the Navajo Nation. Tuba City District, against petitioner El Paso Natural Gas Corporation and one ofits subsidiaries, Rare Metals Corporation. The Neztsosies 8'Sourte material" includes uranium and uranium ore. 42 U. S.C.

$2014(z). ' Byproduct material" includes 'the tailings or wastes pm-duced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content." 52014(e).

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3 Opinion of the Court alleged th'at on the Navajo Nation Reservation, from 1950 to 1965, El Paso and Rare Metals operated open pit ura-nium mines, which collected water then used by the -

- Neztsosies for a number of things', including drinking.

The Neztsosies claimed that, as a result, they suffered severe injuries from exposure to radioactive and other hazardous materials, fer which they sought compensatory and punitive damages under Navajo tort law. App.18a-27a. In 1996, respondent Zonnie Richards, also a member of the Navajo Nation, brought suit for herself and her husbandh estate in the District Court of the Navajo Na-

- tion. Kayenta District, against defendants including the Vanadium Corporation of America, predecessor by merger of petitioner Cyprus Foote Mineral Company. Richards raised Navajo tort law claims for wrongful death and loss j

of. consortium arising from uranium mining and process-

- ing on the Navajo Nation Reservation by VCA and other defendants from the 1940k through the 1960h.136 F,3d 610,613 (CA91998): App. 39a-60a.

El Paso and Cyprus Foote each filed suit in the United States District Court for the District of Arizona, seeking to l

enjoin the Neztsosies and Richards from pursuing their claims in the Tribal Courts. The District Court, citing the 4

tribal court exhaustion doctrine of Nationa1 Farmers Union Ins. Cos. v. Cmw Tdbe, 471 U. S. 845 (1985), denied pre-liminary injunctions "except to the extent" that the i

Neztsosies and Richards sought relief in the Tribal Courts under the Price-Anderson Act.- App. 71a,73a. The practi-cal consequences of those injunctions were left in the air, however, since the District Court declined to decide j

whether the Act applied to the claims brought by the Neztsosies and Richards, leaving those detenninations to the Tribal Courts in the first instance. Id., at 71a, 73a.

Both El Paso and Cyprus Foote appealed.

On the companies' consolidated appeals, the Ninth Circuit affirmed the District Court k decisions declining to J

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EL PASO NATURAL GAS CO. v. NEZTSOSIE Opinion of the Coun enjoin the Neztsosies and Richards from pursuing non-Price Anderson Act claims, as well as the decisions to

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allow the Tribal Courts to decide in the first instance whether the Neztsosies'and Richardsk tribal claims fell within the ambit of the Price-Anderson Act. 136 F. 3d, at 617, n. 4,620. But the Court of Appeals did not rest there.

Although neither the Neztsosies nor Richards had ap-pealed the partial injunctions against them, the Ninth Circuit sua sponte addressed those District Court rulings, citing "important comity considerations involved." Id., at 615. The court reversed as to the injunctions, holding that the Act contains no " express jurisdictional prohibition" barring the tribal court from determining its jurisdiction over Price-Anderson Act claims. Id., at 617--620. Judge Kleinfeld dissented, concluding that the unappealed par-tial injunctions against litigating Price Anderson Act claims in tribal court should be treated as law of the case, that all of the tribal-law claims were actually Price-Anderson Act claims, and that exhaustion was not re-i quired. Id., at 620-622. We granted certiorari, 525 U.S.

_ (1998), and now vacate and remand.

II There is one matter preliminary to the principal issue.

Because respondents did not appeal those portions of the District Courth orders enjoining them from pursuing Price-Anderson Act claims in Tribal Court, those injunc-tions were not properly before the Coun of Appeals, which consequently erred in addressing them. We have repeat-edly affirmed two linked principles governing the conse-1 quences of an appelleeh failure to cross appeal. Absent a cross-appeal, an appellee may 'brge in support of a decree any matter appearing in the record, although his argu-ment may involve an attack upon the reasoning of the lower court," but may not " attack the decree with a view either to enlarging his own rights thereunder or of less-1

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(1999) 5 Opinion of the Court ening the rights of his adversary." United States v. Ameri-can Railway Express Co., 265 U. S. 425, 435 (1924); see also Union Tool Co. v. Wilson, 259 U. S 107,111 (1922).

j We recognized the latter limitation as early as 1796, see McDonough v. Dannery, 3 Dall.188,198, and more than 60 years ago we spoke of it as ' inveterate and certain,"

Morley Constr. Co. v. Maryland Casualty Co., 300 U. S.

185,191 (1937).

l The Court of Appeals acknowledged the rule, but, in j

light of the natural temptation to dispose of the related j

questions ofjurisdiction and exhaustion at one blow, still thought it could take up the unappealed portions of the District Courth orders sua sponte because 'important comity considerations" were involved. 136 F. 3d, at 615.

3 The Court of Appeals apparently took the view, shared by a number of courts over the years, that the prohibition on modifyingjudgments in favor of a nonappealing party is a Tule of practice," subject to exceptions, not an unqualified limit on the power of appellate courts. Petitioners and the Government say the Court of Appeals was mistaken, seeing the rule as an unqualified bound on thejurisdiction of the courts of appeals. We need not decide the theoreti-cal status of such a firmly entrenched rule,z however, for rThe issue has caused much disagreement among the Courts of Ap-l' peals and even inconsistency within particular Circuits for more than 50 years. For a survey of many of the cases, see Mans v. Hines.117 F. 3d 1504,1507-1511 (CA5 1997) (Garwood, J., dissenting). cert.

denied. 522 U. S.1058 (1998). For recent cases taking opposing posi-tions, compare. e.g., Young Radiator Co. v. Celotex Corp. 881 F. 2d 1408.1416 (CA7 1989) (jurisdictional). and United States v. Tabor Court Realty Corp., 943 F. 2d 335, 342-344 (CA31991) (rule of prac-tice). cert. denied sub nom. Linde v. Carrier Coal Enterprises. Inc., 502 U. S.1093 (1992). For a discussion of the issue among the members of a distinguished panel of the Second Circuit. though without any refer.

I cnce to Morley Constr. Co. v. Maryland Casualty Co., 300 U.S.185

- (1937). see In ir Bamett,124 F. 2d 1005.1008-1013 (CA21942) (Frank.

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6 EL PASO NATURAL GAS CO. v. NEZTSOSIE Opinion of the Court even if it is not strictlyjurisdictjonal (a point we do not resolve) the " comity considerations" invoked by the Court of Appeals to justify relaxing it are clearly inadequate to defeat the institutional interests in fair notice and repose that the rule advances. Indeed, in more than two centu-ries of repeatedly endorsing the cross-appeal requirement, not a single one of our holdings has ever recognized an exception to the rule.3

' J., joined by Clark, J.); id., at 1013-1014 (L Hand, J., dissenting).

80n three occasions since Morley Constr Co., we have made state-ments in dictum that might be taken to suggest the possibility of exceptions to the rule. Only one of those statements concerned the l

power of the courts of appealsc See Bowen v. United States Postal Service. 459 U. S. 212.' 217-218. n. 7 (1983); id., at 244 (White, J.,

l concurring in judgment in part and dissenting in part); id., at 246-247 (REHNQUIST, J., dissenting). In Strunk v. United States,412 U. S. 434, 437 (1973), we suggested in passing that there might be occasions when, in a criminal case. the Court might address a constitutional issue resolved in favor of a petitioner and not raised in a cross-petition for

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certiorari. In United States v. ITT Continental Baking Co., 420 U. S.

l 223,226, n. 2 (1975), we suggested that the cross-petition requirement l

might be a 'Ynatter of practice and control of our docket"rather than of "our power

• Although some might see Berkemer v. McCarty,468 U. S.

420,435, n. 23 (1984), as countenancing exceptions to the cross petition requirement, see R. Stern. E. Gressman. S. Shapiro & K. Geller, Su-preme Court Practice 364 (7th ed.1993); see also Board of Trustees of State Univ, of N. Y. v. Fox. 492 U. S. 469, 485-486 (1989), we have made clear that such a view of Berkemer is mistaken. See Northwest Airlines. Inc. v. County ofKent. 510 U. S 355,365, n. 8 (1994).

We have repeatedly expressed the rule in emphatic terms, see, e.g.,

Helvering v. Pfeiffer, 302 U. S. 247, 250-251 (1937) (1A!n appellee cannot without a cross-appeal attack a judgment entered below'),

though admittedly we have normally had occasion to do so in reference to our own certiorarijurisdiction rather than to the appellate jurisdic-tion of the courts of appeals, see, e.g., LeTulle v. Scofield. 308 U. S. 415, 421-422 (1940) (1W]e cannot afford [the nonpetitioning party) relief *);

NLRB v. Express Publishing Co.,312 U. S. 426,431-432 (1941); (10]ur review is limited"; 'that question is not open here'); Alaska Industrial Bd. v. Chugach Elec. Assn., Inc. 356 U. S. 320, 325 (1958) (those questions are

• hot open'); NLRB v. International Van Lines. 409 U. S.

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(1999) 7 Opinion of the Court On the assumption that comity is not enough, respond-ents offer one additional justification for an exception to the cross-appeal requirement here. They point out that the District Court orders appealed from were preliminary injunctions and thus interlocutory, not final, decrees.

Respondents contend that because they knew they could challenge the substance of those orders on appeal from a finaljudgment, they should not be penalized for failing to cross-appeal at this preliminary stage of the suit. But this argument misconceives the nature of the cross-appeal requirement. It is not there to penalize parties who fail to assert their rights, but is meant to protect institutional interests in the orderly functioning of the judicial system, by putting opposing parties and appellate courts on notice of the issues to be litigated and encouraging repose of those that are not. Fairness of notice does not turn on the interlocutory character of the orders at issue here, and while the interest in repose is somewhat diminished when a final appeal may yet raise the issue, it is still consider-able owing to the indefinite duration of the injunctions.

Preliminary injunctions are, after all, appealable as of right, see 28 U. S. C. S1292(a)(1), and the timely filing requirements of Federal Rules of Appellate Procedure 4 and 26(b) squarely cover such appeals. Neither those Rules nor the interests animating the cross-appeal re-quirement offer any leeway for such an exception.

III Before the District Court, petitioners asserted simply that the Tribal Court lacked subject-matter jurisdiction

48. 52 n. 4 (1972) (~not before us'); Trans World Airlines. Inc. v.

Thurston. 469 U. S. !!!.119, n.14 (1985) (~An argument that would modify the judgment... cannot be presented unless a cross-petition has been illed"). Cf. Federated Department Stores. Inc. v. Moltie. 452 U. S. 394. 398-402 (1981) (resjudicata bars nonappealing parties from I

gaining the benefit of co-parties' victory on appeal).

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8 EL PASO NATURAL GAS CO. v. NEZTSOSIE Opinion of the Court over Price-Anderson Act claims in respondents' tribal court suits, see App.14a,15a. 37a. and sought injunctive relief.4 The District Court responded by enjoining respon-dents from pursuing any Price-Anderson riaims in Tribal Court, and because they did not appeal the injunction, we have no occasion to consider its merits.5 Yet the injunc.

tion has no practical significance without a determination whether respondents.'causes of action are as a matter of law Price-Anderson claims under the terms of 42 U. S. C.

4 SS2210(n)(2) and 2014(hh).

This question the District

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Court declined to armer, thinking that the doctrine of tribal court exhaustion required it to abstain from decid-ing a question of tribal court jurisdiction until the Tribal Courts themselves had addressed the matter. The Court of Appeals approved the abstention ' n the theory that the j

o comity rationale underlying the tribal exhaustion doctrine applied. See 136 F. 3d, at 613-615, 620. We think, how-ever, that it does not.

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4At oral argument before the Court of Appeals. petitioners introduced for the first time the essence of the theory on which they now rely, that the Tribal Courts somehow lacked jurisdiction over Price Anderson claims because under Strate v. A-1 Contractors. 520 U.S. 438 (1997), a tribal court hasjurisdiction over a nonmember only where the tribe has regulatoryjurisdiction with respect to the matter at issue, and Congress has completely occupied the field of nuclear regulation. See 136 F. 3d 610, 618. n. 5 (CA91998): Brief for Petitioners 29-33. But Strate dealt with claims against nonmembers arising on state highways, and " express [ed) no view on the governing law or proper forum when an accident occurs on a tribal road within a reservation." Strate, supra, at 442. By contrast. the events in question here occurred on tribal lands. 136 F. 3d136 F. 3d. at

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5Although we do not reach the merits of the injunction, candor re-quires acknowledging that our view of the inappropriateness of apply.

ing tribal exhaustion, adumbrated infra, at 10-12. suggests that. not-withstanding the silence of the Price Anderson Act with respect to

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tribal courts, the exercise of tribaljurisdiction over claims found to fall within the Act once a defendant has sought a federal forum would be anomalous at best.

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(1999) 9 Opinion of the Court National Farmers Union Ins. Cos. v. Crow Tribe, 471 U. S. 845 (1985), was a suit involving the federal-question jurisdiction of a United States District Court under 28 U. S. C 51331, brought to determine 'Whether a tribal court has the power to exercise civil subject-matterjuris-diction over non-Indians." id., at 855. We held, initially, that federal courts have authority to determine, as a matter " arising under" federal law, see 28 U. S. C. 51331, whether a tribal court has exceeded the limits of its jurls-diction. See 471 U. S., at 852 853. After concluding that federal courts have subject-matterjurisdiction to entertain such a case, we announced that, prudentially, a Oral court should stay its hand 'bntil after the Tribal Cos s has had a full opportunity to determine its own jurisdiction."

Id., at 857. Injustification of a prudential requirement of tribal exhaustion, we stated that 'the existence and extent of a tribal court hjurisdiction will require a careful exami-nation of tribal sovereignty, the extent to which that sovereignty has been altered, divested, or diminished, as well as a detailed study of relevant statutes, Executive Branch policy as embodied in treaties and elsewhere, and administrative 'orjudicial decisions,"id., at 855-856 (foot-note omitMd). The same " considerations of comity," Iowa Mut. Ins. Co. v. LaPlante. 480 U. S. 9,15 (1987), provided the rationale for extending the doctrine to cases where a defendant in tribal court asserts federal-diversityjurisdic-tion in a related action in district court. Id., at 16. Ex-

' haustion was appropriate in each of those cases because

' Congress is committed to a policy of supporting tribal self-government.... [which) favors a rule that will pro-vide the forum whosejurisdiction is being challenged the first opportunity to evaluate the factual and legal hases for the challenge." National Farmers Union Ins. Cos., supra, at 856.

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10 EL PASO NATURAL GAS CO. v. NEZTSOSIE Opinion of the Court This case diffets markedly. By its unusual preemption provision, see 42 U. S. C, S2014(hh),5 the Price-Anderson Act transforms into a federal action, "any public liability action arising out of or resulting from a nuclear accident,"

52210(n)(2). The Act not only gives a district court origi-nal jurisdiction over such a claim, see ibid., but provides for removal to a federal court as of right if a putative Price-Anderson action is brought in a state court, see ibid.

Congress thus expressed an unmistakable preference for a federal forum, at the behest of the defending party, both for litigating a Price-Anderson claim on the merits and for determining whether a claim falls under Price-Anderson when removalis contested.

Petitioners seek the benefit of what in effect is the same scheme of preference for a federal forum when they.ask for an injunction against further litigation in the tribal courts.

To be sure, their complaints claimed that the tribal courts (unlike state courts) had nojurisdiction over these actions, on the ground that they were Price Anderson claims. But petitioners unmistakably seek to enjoin litigation of these claims in the tribal courts, whether or not those courts would havejurisdiction to exercise in the absence of objec-tion. Injunction against further litigation in tribal courts eThis structure. In which a public liability action becomes a federal action, but one decided under substantive state law rules of decision that do not conflict with the Price-Anderson Act, see 42 U. S. C;

$2014(hh), resembles what we have spoken of as *tomplete pre-emption' doctrine

• see Caterpular Inc. v. Wuhams 482 U.S. 386,393 (1987), under which 'the pre-emptive force of a statute is so extraordi-nary'that it tonverts an ordinary state common-law cumplaint into one stating a federal claim for purposes of the well-pleaded complaint rule."'

lbid. (quoting Metmpohtan Life Ins. Co. v. Taylor, 481 U. S. 58. 65 (1987)).

We have found complete preemp';t n to exist under the labor-Management Relations Act,1947, see (3terpHlar. Inc., supra, at 393-394, and the Employee Retirement Income Security Act of 1974. see Metmpoh-tan Life. supra. at 65-66.

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(1999) 1I Opinion of the Court would in practical terms give the same result as a removal held to bejustified on the ground that the actions removed '

fell under the Price-Anderson definitions of claims of public liability: if respondents then should wish to proceed they would be forced to refile their claims in federal court (or a state court from which the claims would be removed).

The issue, then, is whether Congress would have chosen to postpone federal resolution of the enjoinable character of this tribal court litigation, when it would not have post-poned federal resolution of the functionally identical issue pending in a state court.

We are at a loss to think of any reason that Congress would have favored tribal exhaustion. Any generalized sense of comity toward nonfederal courts is obviously displaced by the provisions for preemption and removal from state courts, which are thus accorded neitherjot par tittle of deference.7 The apparent reasons for this congres-sional policy of immediate access to federal forums are as much applicable to tribal-as to state-court litigation.

The Act provides clear indications of the congressional aims of speed and efficiency. Section 52210(n)(3)(A) em-powers the chief judge of a district court to appoint a special caseload management panel to oversee cases aris-ing from a nuclear incident. The functions of such panels include case consolidation,52210(n)(3)(C)(i);-setting of pri-orities, 52210(n)(3)(C)(ii): "promulgat[lon ofj special rules 7This is not to say that the existence of a federal preemption defense h the'more usual sense would affect the logic of tribal exhaustion.

Under normal circumstances, tribal courts, like state courts, can and do decide questions of federal law, and there is no reason to think that questions of federal preemption are any different. See Santa Clara Pueblo v. Martinez. 436 U. S. 49, 65 (1978) (tribal courts available to vindicate federal rights). The situation here is the rare one in which statutory provisions for conversion of state claims to federal ones and removal to federal courts express congressional preference for a federal forum.

i

~

t 12 EL PASO NATURAL GAS CO. v. NE2TSOSIE Opinion of the Court of court... to expedite cases or allow more equitable consideration of claims," $2210(n)(3)(C)(v); and implemen-tation of such measures "as will encourage the equitable, prompt, and efficient resolution of cases arising out of the nuclear incident, ~ 52210(n)(3)(C)(vi).

The terms of the Act are underscored by its legislative history, which expressly refers to the multitude of sepa-rate cases brought 'In various state and Federal courts"in the aftermath of the Three Mile Island accident. See S.

Rep. No.100-218, at 13. This history adverts to the ex-pectation that %e provisions for consolidation of claims in the event of any nuclear incident... would avoid the inefficiencies resulting from duplicative determinations of similar issues in multiple jurisdictions that may occur in the absence of consolidation." Ibid.

Applying tribal exhaustion would invite precisely the mischief of *duplicative determinations" and consequent

' inefficiencies"that the Act sought to avoid, and the force of the congressional concerns saps the two arguable justifi-cations for applying tribal exhaustion of any plausibility in these circumstances. The first possible justification might be that tribal exhaustion is less troubling than state court exhaustion, because in the former situation the ~ district court may reviewjurisdiction after recourse to tribal court has been exhausted, see National Farmers Union Ins. Cas.,

471 U. S., at 857, whereas a state courth determination of itsjurisdiction is final except for the possibility of our review on certiorari. But the likelihood of effective review says-i nothing to the Actk insistence on efficient disposition of public liability claims, which would of course be curtailed by an exhaustion requirement. It is not credible that Congress I

would have uniquely countenanced, let alone chosen, such j

a delay when public liability claims are brought in tribal court.

The second possible justification is that the absence of any. statutory provision-for removal from tribal court L

i l

i

Cite as:

U. S.

(1999) 13 Opinion of the Court running parallel to the terms authorizing state-court removal might ground a negative inference against any intent to govern Price-Anderson actions in tribal courts, in accordance with the. usual policy of letting a plaintiff choose the forum. But only the most zealous application of the maxim expressio unius est exclusio alterius could an-swer the implausibility that Congress would have in-tended to force defendants to remain in tribal courts. The congressional reasoning sketched above is no less forceful when plaintiffs choose tribal: sts; leaving such claims in these courts would just as cifectively thwart the Acth policy of getting such cases into a federal forum for con.

solidation, as leaving them in state forums would do.

Why, then, the congressional silence on tribal courts? If "expressio unius..." fails to explain the Congress 5 failure to provide for tribal-court removal, what is the explana-tion? After all we have said, inadvertence seems the most likely. We have not been told of any nuclear testing labo-ratories or reactors on reservation lands, and if none was brought to the attention of Congress either, Congress probably would never have expected an occasion for as-serting tribaljurisdiction over claims like these. Now and then silence is not pregnant.

Because the comity rationale for tribal exhaustion nor-mally appropriate to a tribal courth determination of its jurisdiction stops short of the Price-Anderson Act, the

. District Court should have decided whether respondents' claims constituted 'public liability action [s} arising out of or resulting from a nuclear incident " 42 U. S. C.

52210(n)(2). We accordingly vacate the judgment of the Court of Appeals and remand with instructions to remand the case to the District Court for proceedings consistent with this opinion.

So ordered.

O 1

Thermal Science. Inc. v. NRC, No. 98-3147 (8* Cir., stay order issued May 28,1999) l j

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UNITED STATES COURT OF APPEALS

' FOR THE ElGHTH CIRCUIT No.

98-3147EMSL Thermal Science, Inc.,

Appellant, Appeal from the United States i

District Court for the l

vs.

Eastern District of Missouri g

U.S. Nuclear Regulatory Commission, Appellee.

l Appellant Thermal Science, Inc. 's motion for a stay of administrative proceedings before Nuclear Regulatory Commission is granted, and those proceedings will be stayed pending this appeal.

May 28, 1999 l

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Orde.Ent ed t e

tion of the Court:

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Clerk, U.S. Court of Appeals, Eighth Circuit i

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. Eastern Navalo Dine Aaainst Uranium Minina v. NRC.

Nos.99-1190, 99-1194, 99-1195, 99-1196 (D.C. Cir., filed May 20 and May 25,,1999) l 0

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May-Zb-IB 12:40pm From-5HAWPITh4AN 2926631087 7-588 Pa3/11 F-658 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUlT Eastern Navajo Dind Against Uranium Mining and Southwest Research and Information Center,.

Pecnioners, No.

-I@D v.

United States Nuclear Regulatory Commission and United States of

America, Respondents.

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PETITION FOR REVIEW Eastern Navajo Din 6 Against Uranium Mining ("ENDAUM*) and Southwest Research and Information Center (SRIC") hereby petition the United Staies Court of Appeals for the District of Columbia Circuit for review of the United States Nuclear Regulatory Commission's Atomic Safety and Licensing Board Presiding Officer's February 3,1999 l

Partial Initial Decision (Waste Disposal Issues). LBP 99-1,48 NRC

_ (1999). This Partial Imtal Decision was issued in the Nuclear Regulatory Commission adjudication concerning Hydro Resources, Inc., Atomic Safety and Licensing Board number 95-706-01-ML Docket number 40-8%8-ML, A copy of this Partial Initial Decision is attached.

4 The Petitioners are ENDAUM, a grassroots Navajo organization located in Crownpoint and Church Rock, New Mexico and SRIC. a non-profit tax exempt organization in Albuquerque, New Meaico. The Respondents are the United States Nuclear Regulatory 1

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Commission and the United States of America.

As is indicated on the Certificate of Service filed with this Petition. ENDAUM a SRIC have utved t) i Petition on all of the parties in the proceeding below Dated. May 20, 1999.

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$' $ w Johai(na Matanich

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A$nd' ff Diane Curran Lila Bird (Applicatioh pending)

HARMON, CURRAN, SPIELBERG, Douglas Meiklejohn

& EISENBERG LLP NEW MEXICO ENVIRONMENTAL 1726 M" Street, N.W., Suite. 600 LAW CENTER Washington DC 20036

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1405 Luisa Street, Suite 5 (202) 328-3500 l

Santa Fe, N.M. 8750S (505) 989-9022 Attorney for Petitioners ENDAUM and SRIC Attorneys for Petitioners 1

ENDAUM and SRIC

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2

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1 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUlT Er. stern Navajo Din 6 Against Uranium Mining and Southwest Research and Information

Center, Petitioners, e

v.

No.

United States Nuclear Regulatory Commission and United States of

America, Respondents.

PETITION FOR REVIEW Eastern Navajo Din 6 Against Uranium Mining ("ENDAUM") and Southwest Research and Information Center (SRIC") hereby petition the United States Court of Appeals for the District of Columbia Circuit for review of the United States Nuclear Regulatory j

Commission's Atomic Safety and Licensing Board Presiding Officer's February-19,1999 Partial Initial Decision (Issues Related to the National Historic Preservation Act (NH' A) and P

the Native American Graves Protection and Repatriation Act (NAGPRA) and Cultural Resources), LBP-99-9,48 NRC ___ (1999). This Partial Initial Decision was issued in the Nuclear Regulatory Commission adjudication concerning Hydro Resources, Inc., Atomic I

Safety and Licensing Board number 95-70641-ML, Docket number 40-8968-ML. A copy of

. this Partial Initial Decision is attached.

The Petitioners are ENDAUM, a grassroots Navajo organization located in R

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l Crownpoint and Church Rock, New Mexico, and SRIC, a non-profit tax exempt organization in Albuquerque, New Mexico. The Respondents are the United States Nuclear Regulatory Commission and the United States of America.

As is indicated on the Certificate of Service filed with this Petition, ENDAUM and i

SRIC have served this Petition on all of the parties in the proceeding below.

Dated: May 26,1999.

LVWV di Ad

/ dd WM Johar%h Matanich

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Diane Curran l

Lila Sjrd (Application hend.ng)

HARMON, CURRAN, SPIELBERG, Douglas Meiklejohn,

& EISENBERG, LLP NEW MEXICO ENVIRONMENTAL 1726 "M" Street, N.W., Suite. 600 LAW CENTER Washington DC 20036 1405 Luisa Street, Suite 5 (202) 328-3500 Santa Fe, N.M. 87505 (505) 989-9022 Attorney for Petitioners ENDAUM and SRIC Attorneys for Petitioners ENDAUM and SRIC l

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l IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUlT Eastern Navajo Din 6 Against Uranium Mining and Southwest Research and Information

Center, Petitioners, v.

No.

United States Nuclear Regulatory Commission and United States of i

America, Respondents.

PETITION FOR REVIEW Eastern Navajo Din 6 Against Uranium Mining ("ENDAUM") and Southwest Research and Information Center (SRIC") hereby petition the United States Court of Appeals for the District of Columbia Circuit for review of the United States Nuclear Regulatory Commission's Atomic Safety and Licensing Board Presiding Offx:er's February 19,1999

{

Partial Initial Decision (Performance-Based ' Licensing Issues), LBP-99-10, 48 NRC 4

(1999). This Partial Initial Decision was issued in the Nuclear Regulatory Commission adjudication concerning Hydro Resources, Inc., Atomic Safety and Licensing Board number 95-70641-ML, Docket number 40-8968-ML. A copy of this Partial Initial Decision is 4

attached.

'Ihe Petitioners are ENDAUM, a grassroots Navajo organization located in Crownpoint and Church Rock, New Mexico, and SRIC, a non-profit tax exempt organization 1

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i in Albuquerque, New Mexico. The Respondents are the United States Nuclear Regu t

Commission and the United States of America.

As is indicated on the Certificate of Service filed with this Petition, ENDAUM and SRIC have served this Petition on all.of the parties in the proceeding below.

Dated: May 26,1999.

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4

/

MAAAM ff Joha

, Matanich

/

Diane Curran Lila d (Application'pending)

HARMON, CURRAN, SPIELBERG, Douglas Meiklejohn

& EISENBERG, LLP NEW MEXICO ENVIRONMENTAL 1726 "M" Street, N.W., Suite. 600 LAW CENTER Washington DC 20036 1405 Luisa Street, Suite 5 (202) 328-3500 Santa Fe, N.M. 87505 (505) 989-9022 Attorney for Petitioners ENDAUM and SRIC Attorneys for Petitioners ENDAUM and SRIC O

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IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Eastern Navajo Din 6 Against

- Uranium Mining and Southwest Research and Information

Center, Petitioners, No.k

$D v.

United States Nuclear Regulatory Commission and United States of

America, Respondents.

PETITION FOR REVIEW Eastern Navajo Din 6 Against Uranium Mining ("ENDAUM") and Southwest '

Research and Informuion Center (SRIC") hereby petition the United States Court of Appeals for the District of Columbia Circuit for review of the United States Nuclear Regulatory Commission's Atomic Safety and Licensing Board Presiding Officer's February 3,1999

~

Partial Initial Decision (Financial Assurance for Decommissioning Issues), LBP-99-13,48 NRC __ (1999). This Partial Initial Decision was issued in the Nuclear Regulatory Commission adjudication concerning Hydro Resources, Inc., Atomic Safety and Licensing Board number 95-706-01-ML, Docket number 40-8%8-ML. A copy of this Partial Initial Decision is attached.

The Petitioners are ENDAUM, a grassroots Navajo organization located in Crownpoint and Church Rock, New Mexico, and SRIC, a non-profit tax exempt organization 1

m

.