Download pdf - 1 Paul Spruhan (NM Bar #12513) Navajo Nation Department of ... · 4/22/2019 · 1 1 Paul Spruhan 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 –(NM Bar

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Paul Spruhan – (NM Bar #12513)

Navajo Nation Department of Justice

PO Box 2010

Window Rock, Arizona 86515

(928) 871-6210

[email protected]

Colin Bradley – (AZ Bar #031632)

Colin Bradley Law PLLC

2600 N. 44th St., Suite B-101

Phoenix, AZ 85008

(602) 361-2551

[email protected]

Counsels for the Navajo Defendants

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Employers Mutual Casualty Company,

Plaintiff,

vs.

Ethel B. Branch, Attorney General of the

Navajo Nation, in her official capacity;

Judge Cynthia Thompson, in her official

capacity as tribal judge of the Navajo Nation

District Court, Judge Rudy Bedonie, in his

official capacity as current tribal judge of the

Navajo Nation District Court;

Defendants.

No. CV-18-8110-PCT-DWL

NAVAJO DEFENDANTS’

MOTION FOR SUMMARY

JUDGMENT AND RESPONSE TO

PLAINTIFF EMC’S MOTION

FOR SUMMARY JUDGMENT

Oral Argument Requested

Case 3:18-cv-08110-DWL Document 22 Filed 11/14/18 Page 1 of 41

mailto:[email protected]


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Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure and Rule 56.1

of the Local Rules of Civil Procedure, Defendants Ethel B. Branch, Attorney General

of Navajo Nation, in her official capacity, Judge Cynthia Thompson, in her official

capacity as tribal judge of the Navajo District Court, and Judge Rudy Bedonie, in his

official capacity as current tribal judge of the Navajo Nation District Court

(hereinafter collectively “Navajo Defendants” or “Defendants” or “Navajo Nation”

or “Nation”) hereby move this Court for summary judgment against Plaintiff

Employers Mutual Casualty Company’s (EMC) claims in its Complaint [Doc. 1] and

Motion for Summary Judgment [Doc. 15] (“Motion”), and, respond EMC’s Motion

as follows:

MEMORANDUM OF POINTS AND AUTHORITIES

I. Introduction

EMC asks this Court to encroach on the Navajo Nation’s sovereignty by

making an improper ruling on the jurisdictional bounds of the Navajo Nation courts.

EMC’s Complaint and Motion should be denied for multiple reasons:

First, the Navajo courts are properly exercising jurisdiction according to the

Water Wheel Camp Rec. Area, Inc. v. LaRance, 642 F.3d 802 (9th Cir. 2011)

(hereinafter “Water Wheel”) and Window Rock Unified School District v. Reeves, 861

F.3d 894 (9th Cir. 2017) (hereinafter “Window Rock”) analysis.

Second, even if this Court chooses to apply Montana v. U.S., 450 U.S. 544

(1981) (hereinafter “Montana”), the Nation is properly exercising jurisdiction

according to its second exception.


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Third, EMC cannot demonstrate that the Resource Conservation and Recovery

Act (“RCRA”) preempts the Nation’s claims in the Chinle District Court because the

Nation’s Claims against EMC cannot be brought as a RCRA citizen suit, the Nation

is seeking compensation for damages to Navajo Nation land and water, which is not

available under RCRA, the Nation’s claims involving the scope of insurance

coverage and its claim for nályééh are properly brought in tribal court, and because

RCRA does not preempt common law claims.

Because the Nation is properly exercising jurisdiction, the Nation’s Motion

for Summary Judgment should be granted and EMC’s Motion and Complaint should

be denied.

II. Background

a. Procedural History

1. On November 8, 2013, the Navajo Nation filed a Complaint in the Chinle District

Court. Doc 1-2, at 61. In its Complaint, the Nation sued, among others, Milam

Building Associates, Inc (“Milam”), Service Station Equipment Sales, Inc

(“SSES”), and Plaintiff EMC. Id., at 63-65 ¶¶ 6, 8, & 11. EMC issued a

“commercial general liability policy”1 to both Milam and SSES. Doc. 1-2, at 95

1 A commercial general liability insurance policy is generally “[i]nsurance for liability

and property risks for commercial business operations. Commercial general liability

insurance provides coverage to business and commercial entities for specified

categories of claim arising from injury to property and from liability for claims brought

against an assured by a third party.” The Wolters Kluwer Bouvier Law Dictionary

Desk Edition, Commercial General Liability (C.G.L. or CGL) (2012).


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¶¶10 & 12. Against EMC, the Nation alleged that it is breaching its duty to defend

its insureds, breaching its duty to indemnify its insureds, and it is also responsible

for damages under the Navajo concept of nályééh. Id., at 76-79 ¶¶70-86.

2. On January 27, 2014, Plaintiff EMC filed a Motion to Dismiss. Doc. 1-2, at 82.

In its Motion to Dismiss, Plaintiff EMC alleges, inter alia, that the Chinle District

Court lacks subject matter jurisdiction over the Nation’s Complaint. Id., at 84-87.

3. Then, on June 21, 2016, EMC and the Nation—along with Zurich American

Insurance Company (“Zurich”)—filed a Stipulated Facts re Subject Matter

Jurisdiction As to Claims Against [EMC] and [Zurich] (“Stipulated Facts”). Doc.

1-2, at 93-101; Ex. A. In that document, EMCC and the Nation agreed to

stipulated facts in determining whether the Chinle District Court had “subject

matter jurisdiction.” Id., at 93.

4. On February 8, 2018, the Chinle District Court issued its Order Denying EMC’s

Motion to Dismiss. Doc. 1-2, at 103. The Chinle Court used the parties Stipulated

Facts to formulate its order. Id., at 104-107.

5. On March 9, 2018, EMC filed a Petition for a Writ of Prohibition (“Writ”) in the

Navajo Nation Supreme Court. Doc. 1-2, at 120. In its Writ, EMC claimed that it

had a declaratory judgment in Coconino County and that it had obtained a release

of claims from SSES. Id., at 122 ¶8. These facts are not found in the Stipulated

Facts, as EMC did not raise them before the Chinle District Court. See Doc. 1-2,

at 94-97 ¶¶ 1-20.

6. On March 23, 2018, the Navajo Nation Supreme Court issued its Order Denying


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Permanent Writ of Prohibition (“Order Denying Writ”). Doc. 1-2, at 141. The

Navajo Nation Supreme Court denied the Writ, but also concluded that EMC “has

a remedy at law by appeal after the merits of the case are fully determined” and,

that the Navajo Nation Supreme Court would “not usurp the authority of the lower

court to make determinations of merit.” Id., at 142.

7. Finally, EMC filed its Complaint on May 25, 2018 and its Motion on October 4,

2018, EMC filed its Motion. Doc. 1; Doc. 15.

b. Stipulated Facts

8. An abbreviated version of the Stipulated Facts, Ex. A, Doc. 1-2, at 93-101, is set

forth below:

9. The Navajo Nation brought this action for declaratory relief and to recover

monetary damages and nályééh from: 1) various parties whom the Navajo Nation

claims caused releases of over 15,000 gallons of gasoline at a gas station in

Chinle, Arizona, on tribal trust land within the formal Reservation; and 2) the

insurance companies, including EMC and Zurich, that issued policies of insurance

to such parties. Doc. 1-2, at 94 ¶ 1.

10. As to EMC, the Navajo Nation concedes that the first exception under Montana,

i.e., whether the non-member has entered into a consensual relationship with the

Navajo Nation or one of its members, does not apply. EMC does not have a

contractual relationship with the Navajo Nation. It has an insurance contract with

Milam Building Associates, Inc., [Milam] a non-Indian Texas corporation whose

officers are Stella Eldridge and Vernon Eldridge, both non-Indians, and with


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Service Station Equipment, and, Sales, Inc. (SSES), a non-Indian Arizona

corporation whose officer is Spencer Reidel, a non-Indian individual. Spencer

Reidel is also an officer of two other companies involved in this case,

Underground Analytical and Petroleum Systems, Inc. Doc. 1-2, at 94 ¶3.

11. The site of the petroleum releases at issue (“Site”) is the Pic-N-Run gas station

located on highway 7 in Chinle, Arizona on tribal trust lands within the boundary

of the formal Navajo Indian Reservation. Doc. 1-2, at 95 ¶ 5.

12. Since approximately 1955, the Navajo Nation has leased the Site to Sybil

Baldwin, Walter Baldwin and the Estate of Sybil Baldwin (collectively,

“Baldwins”), who operated a gas station and convenience store on the Site. The

Baldwins are (were) citizens of the Navajo Nation. The most recent lease was

signed in January 1995 and extends for fifty years. Doc. 1-2, at 95 ¶ 6.

13. In December 1997, Pic-N-Run entered into a sublease for use of the Site. Pic-N-

Run was the operator of the gas station and convenience store at the Site at the

time of the alleged release in 2005. Doc. 1-2, at 95 ¶ 7.

14. Milam is a contractor who, in July 2004, entered into a contract with Pic-N-Run

to perform certain upgrades at the Pic-N-Run site. Doc. 1-2, at 95 ¶ 9.

15. EMC issued a commercial general liability policy to Milam, effective from

August 20, 2004 to August 20, 2005. The policy was issued to Milam at its office

in Show Low, Arizona. Id., at 95 ¶ 10.

16. In 2004, Pic-N-Run contracted with either SSES or Underground Analytical to

remove the underground storage tanks (USTs) at the Site and to oversee


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installation of an above-ground petroleum storage tank system (AST). Doc. 1-2,

at 95 ¶ 11.

17. EMC issued a commercial general liability policy to SSES, effective October 27,

2004 to October 27, 2006. The policy was issued to SSES at its office in Flagstaff,

Arizona. Until 2004, fuel was stored at the Site in three USTs. As a result of leaks

from the USTs, Pic-N-Run performed some corrective action to remediate

contamination at the Site. At some point Pic-N-Run decided to replace the USTs

with ASTs. Separately, Pic-n-Run also determined to do some renovations to the

Site and in doing so, hired Milam to do the renovation work. Milam subcontracted

with another company, Shiprock Construction Company (“Shiprock”), to do

certain concrete work, including building a concrete wall and installing a concrete

driveway. Doc. 1-2, at 95-96 ¶ 12.

18. In March 2005, an employee of Shiprock breached a supply line that fed fuel

from the ASTs to the fuel islands. The incident went undetected until August

2005. It is estimated that 15,633 gallons of unleaded premium gasoline was

released into the environment due to the damaged product line. Doc. 1-2, at 96 ¶

13.

19. Shiprock's general liability insurer, Ohio Casualty Company, funded an “initial

site investigation” to assess conditions relating to the AST fuel-line release at the

Site resulting in a report that revealed gasoline also leaked from the Site into the

environment sometime from the mid-1940s to the mid-1980s and between 1974

and 1978. Doc. 1-2, at 96 ¶ 16.


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20. On August 27, 2009, the United States Environmental Protection Agency

(“EPA”) issued an Administrative Order (“EPA Order”), effective September 11,

2009, under Section 7003 of the Solid Waste Disposal Act, commonly referred to

as the Resource Conservation and Recovery Act (“RCRA”). The EPA Order was

issued against various potentially responsible parties (“PRPs”), namely, Stella

Jeanette Eldridge, dba Milam Building Associates, Inc., and Vernon W. Eldridge,

dba Milam Building Associates, Inc.; Daniel and Dorothy Felix, dba Shiprock

Construction Company; the Estate of Sibyl Baldwin, Floyd Baldwin, Chester

Baldwin, Bobby Baldwin, and Walter Baldwin; and David Edward Flores and

Pic-N-Run, Inc. The SSES parties were not subject to the EPA Order. In addition,

no insurance companies were subject to the EPA Order. Doc. 1-2, at 96 ¶ 17.

21. According to the EPA Order's findings of fact, the location of the environmental

contamination is the southwest corner of the intersection of Indian Route 7 and C

Street on the Navajo Nation in Chinle, Arizona. The facility at the Site consists

of a kiosk, six fuel islands, a canopy, and a fuel farm made up of four ASTs. Each

AST has a capacity of 10,000 gallons. Doc. 1-2, at 96 ¶ 18.

22. According to the EPA Order's findings of fact, the petroleum release at the PNR

Site has contaminated soil and has affected groundwater on the Navajo Nation.

Doc. 1-2, at 97 ¶ 19.

23. The EPA Order requires the PRPs to remediate the Site under the direction and

control of the EPA. Doc. 1-2, at 97 ¶ 20.


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III. Legal Standards

a. Summary Judgment

Summary judgment is warranted “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” F. R. C. P. 56(a).

b. Review of a Tribal Court’s Determination of Jurisdiction

“The standard of review for an Indian tribal court decision deciding

jurisdictional issues is de novo on questions of federal law and clearly erroneous for

factual questions.” Big Horn Cty. Elec. Coop. v. Adams, 219 F.3d 944, 949 (9th Cir.

2000). However, “the district court's review is akin to appellate review of the tribal

court record.” Water Wheel, 642 F.3d 802, 817 n.9 (9th Cir. 2011). And, because of

this, a court cannot rely on facts “which w[ere] not before the tribal court.” Id.

IV. Argument

a. The Nation is Entitled to Summary Judgment Under the Facts

Presented to the Chinle District Court and EMC’s Motion Should be

Denied.

In this case, the Nation is entitled to summary judgment because “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” F. R. C. P. 56(a). Here, there is no genuine dispute as to any material

fact because the parties agreed to the Stipulated Facts—which the Chinle District

Court used to determine that it had jurisdiction. Doc. 1-2, at 94-97; Doc. 1-2, at 104-

107.

Moreover, this Court should only consider the facts in the Stipulated Order


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because “the district court's review is akin to appellate review of the tribal court

record.” Water Wheel, 642 F.3d 802, 817 n.9 (9th Cir. 2011). And, because of this, a

court cannot rely on facts “which w[ere] not before the tribal court.” Id. Because the

only facts that were before the Chinle District Court were those in the Stipulated

Order, this Court should not consider any facts that are beyond said order. Despite

this precedent, EMC incorrectly attempts to introduce evidence of its “declaratory

relief in Arizona” against Milam and its settlement with SSES. Doc. 15, at 5 ¶¶ 3-8,

& 9-14.2 Thus, this Court must only look to the Stipulated Facts, as did the Chinle

District Court, in order to make its jurisdictional determination.3

Finally, the Navajo Nation moves this Court for summary judgment to uphold

the Chinle District Court’s Order Denying EMC’s Motion to Dismiss—which held

that the Chinle District Court has jurisdiction over the Navajo Nation’s Complaint

against EMC. Doc. 1-2, at 103. Here, the Navajo Defendants will demonstrate the

Chinle District Court’s legal conclusion was proper, and, that the Chinle District

Court did not make any clear factual errors. Big Horn Cty. Elec. Coop. v. Adams, 219

2 While the Plaintiff did attempt to introduce these facts in its Writ to the Navajo Nation

Supreme Court, the Navajo Nation Supreme Court, like this Court, is not a fact-finding

body. Doc.1-2, at 122 ¶8; See PC&M Constr. Co. v. Navajo Nation, 7 Nav. R. 72, 73

(Nav. Sup. Ct. 1993) (holding that facts not in the record must be stricken on appeal).

3 Additionally, these facts are nonetheless irrelevant because they are not material to

the question of jurisdiction. See Sasson v. Sokoloff (In re Sasson), 424 F.3d 864, 872

(9th Cir. 2005) (stating that the doctrines of collateral estoppel and res judicata “do not

affect . . . jurisdiction.”). Though they may have some preclusive effect regarding the

merits of the matter in the Chinle District Court, they simply do not go to jurisdiction.

See Id.


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F.3d 944, 949 (9th Cir. 2000).

b. The Chinle District Court Has Jurisdiction under the Water Wheel and

Window Rock analysis.

Though it was not discussed in the Order of Dismissal, Doc. 1-2, at 103, by

the Chinle District Court, the Ninth Circuit has held that a Montana analysis is only

proper where a court is “consider[ing] tribal jurisdiction over nonmember activities

on non-Indian land, held in fee simple, within a reservation.” Grand Canyon Skywalk

Dev., LLC v. ‘Sa’ Nyu Wa Inc., 715 F.3d 1196, 1205 (9th Cir. 2013) (emphasis in

original) (hereinafter “Grand Canyon Skywalk”).4 Here, “this case is not Montana,”

because “[t]he land underlying this case, however, is federal Indian land held in

trust.” Id; Doc. 1-2, at 94 ¶ 1. Therefore, because this case involves non-member

conduct on trust land, the proper analysis comes from Water Wheel, and not Montana.

Prior to Water Wheel, the U.S. Supreme Court stated that when non-member

activities occur on the reservation, the status of the land can be the dispositive factor.

See Nevada v. Hicks, 533 U.S. 353, 360 (2001). In addition, the Supreme Court held

where a tribe has the right to exclude non-members, this can mean that the tribe also

retains the right to regulate. See Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 144–

4 Though, the Ninth Circuit recognized Nevada v. Hicks as an exception. Grand

Canyon Skywalk Dev., LLC, 715 F.3d at 1205 (9th Cir. 2013) (stating “[w]ith the

exception of Nevada v. Hicks, . . . the Supreme Court has applied Montana ‘almost

exclusively to questions of jurisdiction arising on non-Indian land or its

equivalent.’”) (internal citation omitted).


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45 (1982).5 Stemming from this precedent, the Ninth Circuit held in Water Wheel that

“[f]rom a tribe's inherent sovereign powers [to exclude] flow lesser powers, including

the power to regulate non-Indians on tribal land.” Water Wheel, 642 F.3d at 808–09.

The Ninth Circuit elaborated that when you are dealing with a tribe’s inherent power

to exclude, and the lesser power to regulate, Montana simply does not apply. Id., at

810 (stating “Montana limited the tribe's ability to exercise its power to exclude only

as applied to the regulation of non-Indians on non-Indian land, not on tribal land.”).

And, “[w]here a tribe has regulatory jurisdiction and interests, . . . it is also likely to

have adjudicatory jurisdiction. . . ..” Grand Canyon Skywalk, 715 F.3d at 1205. Thus,

if the Nation has the right to exclude, it also retains the right to regulate conduct on its

lands, and will likely have adjudicatory jurisdiction as well. This analysis was recently

reaffirmed in Window Rock, 861 F.3d 894, 902 (9th Cir. 2017) (stating “[w]e [Ninth

Circuit] explained that the Montana framework was inapplicable because the conduct

at issue occurred on tribal land."). Here, the facts of the case fall directly under Water

Wheel and its progeny because the Nation has the right to exclude, and the actions took

place on tribal land. Doc. 1-2, at 94 ¶ 1.

The Navajo Nation has the explicit right to exclude non-members due to its

5 Stating “[n]onmembers who lawfully enter tribal lands remain subject to the tribe's

power to exclude them. This power necessarily includes the lesser power to place

conditions on entry, on continued presence, or on reservation conduct, such as a tax on

business activities conducted on the reservation.”


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Treaty of 1868 with the United States. See Treaty of 1868, at Article II;6 see also

Donovan v. Navajo Forest Products Indus., 692 F.2d 709, 711–12 (10th Cir. 1982);7

see Williams v. Lee, 358 U.S. 217, 223 (1959).8 Therefore, because the Nation has the

right to exclude non-members, it has retained the right to regulate their conduct on its

lands, under its own treaty authority, in addition to the general principles of Water

Wheel and Window Rock. See 867 F.3d at 905 (“Thus, as the treaty makes clear, the

land at issue here is ‘within the exclusive sovereignty of the Navajos,’ and from this

sovereignty, regulatory and adjudicative authority follow.” (quoting McClanahan v.

State Tax Comm’n of Arizona, 411 U.S. 164, 175).

Furthermore, this case involves the regulation of non-member conduct on tribal

6 15 Stat. 668 (stating “this reservation, shall be, and the same is hereby, set apart for

the use and occupation of the Navajo tribe of Indians, and for such other friendly tribes

or individual Indians as from time to time they may be willing, with the consent of the

United States, to admit among them; and the United States agrees that no persons

except those herein so authorized to do, and except such officers, soldiers, agents, and

employees of the government, or of the Indians, as may be authorized to enter upon

Indian reservations in discharge of duties imposed by law, or the orders of the

President, shall ever be permitted to pass over, settle upon, or reside in, the territory

described in this article.”)

7 Stating “[t]he Navajo treaty language set forth in Article II makes it clear, in our

view, that in order to achieve an end to conflict and ensure peace, the United States

Government agreed to leave the Navajos alone on their reservation to conduct their

own affairs with a minimum of interference from non-Indians, and then only by those

expressly authorized to enter upon the reservation.”

8 Stating “[t]he cases in this Court have consistently guarded the authority of Indian

governments over their reservations. Congress recognized this authority in the Navajos

in the Treaty of 1868, and has done so ever since. If this power is to be taken away

from them, it is for Congress to do it.”


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land because there has been a gasoline spill “of over 15,000 gallons at a gas station in

Chinle, Arizona, on tribal trust land within the formal reservation.” Doc. 1-2, at 94 ¶

1. The Nation has claimed that due to this, its reservation land and water have both

allegedly been contaminated. Id; Doc. 1-2, at 97 ¶ 19. Additionally, the Ninth Circuit

has held that if a “dispute . . . ‘arose on the reservation,’. . . [then] the federal court

has no option but to defer [to the tribal court].” Stock W. Corp. v. Taylor, 942 F.2d

655, 661 (9th Cir. 1991), on reh'g, 964 F.2d 912 (9th Cir. 1992) (hereinafter “Stock W.

Corp”). And, “disputes clearly ‘arise’ on the reservation, given the situs of the harm

on the reservation and the presence of Indian parties.” Id., at 662. Here, because the

harm arose on the reservation and involves an Indian Tribe—the Navajo Nation—the

Navajo courts have jurisdiction. Doc. 1-2 at 94 ¶ 1; see Stock W. Corp., 942 F.2d 655,

662 (9th Cir. 1991) (stating that Nat'l Farmers Union Ins. Cos. v. Crow Tribe of

Indians, 471 U.S. 845 (1985), and Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987)

were examples of cases arising on the reservation because they involved “insurance

companies su[ing] Indians (and in one case, the tribe itself) in federal court following

the institution of tribal court lawsuits against the insurers.”); see also Allstate Indem.

Co. v. Stump, 191 F.3d 1071, 1075 (9th Cir. 1999) (stating that “the estates' bad faith

claim [against an insurance company] should probably be considered to have arisen

on the reservation.”) (hereinafter “Stump”); cf. Admiral Ins. Co. v. Blue Lake

Rancheria Tribal Court, No. 5:12-cv-01266-LHK, 2012 U.S. Dist. LEXIS 48595, at

*15 (N.D. Cal. Apr. 4, 2012) (stating “the mere fact that Admiral [insurance] is located

off the reservation is not sufficient to find that the claim arose off the reservation.”)


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(hereinafter “Admiral”); see also State Farm Ins. Cos. v. Turtle Mt. Fleet Farm LLC,

No. 1:12-cv-00094, 2014 U.S. Dist. LEXIS 65748, at *32 (D.N.D. May 12, 2014)

(stating “even if the [Defendants’] bad faith claim arises out of an independent

obligation to act in good faith and sound in tort, it still has a direct relationship to State

Farm's obligation under the policy to make payment for any damages or loss for

property located on the reservation.”) (hereinafter “Turtle Mt. Fleet”). Therefore,

because “the harm occurred” on the reservation, “the tortious activity took place within

the reservation boundaries.” See Turtle Mt. Fleet, No. 1:12-cv-00094, 2014 U.S. Dist.

LEXIS 65748, at *27 (D.N.D. May 12, 2014).

Moreover, the Nation has “the right to regulate the economic activity of . . .

insurance . . . on the reservation.” Turtle Mt. Fleet, No. 1:12-cv-00094, 2014 U.S. Dist.

LEXIS 65748, at *33 (D.N.D. May 12, 2014) (citing to Williams v. Lee, 358 U.S. 217,

223 (1959) in support). And, pursuant to this right to regulate EMC as an insurance

company, who allowed its insureds to travel on the reservation, the Nation is making

a tort claim—which is in and of itself a form of regulation. 9 See Plains Commerce

Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 323–24, (2008) (characterizing

a tort claim as a form of regulation) (hereinafter “Plains Commerce Bank”); see also

Turtle Mt. Fleet, No. 1:12-cv-00094, 2014 U.S. Dist. LEXIS 65748, at *33-35 (D.N.D.

9 The Navajo Nation also has relevant formal regulations including, the Navajo Nation

Environmental Policy Act, 4 N.N.C. § 901 et seq., the Navajo Nation Safe Drinking

Water Act, 22 N.N.C. § 2501 et seq., the Navajo Nation Storage Tank Act, 4 N.N.C.

§ 1501 et seq., the Navajo Nation Clean Water Act 4 N.N.C. § 101 et seq., and the

Navajo Nation CERCLA, 4 N.N.C. § 2101 et seq.


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May 12, 2014) (stating “if the Tribe retains the power . . . to regulate the conduct at

issue, it does not make any difference whether it does so through precisely tailored

regulations or through tort claims . . ..") (internal citation and quotation omitted). The

Nation’s cause of action for nályééh is a Navajo cause of action that arises in tort.

Allstate Indem. Co. v. Blackgoat, 8 Nav. R. 627, 636 (Nav. Sup. Ct. 2005) (stating

“Navajo Nation courts use nályééh to assess the adequacy of damages

in tort claims.”)10. Additionally, EMC issued a “commercial general liability policy”

to both Milam and SSES. Doc. 1-2, at 95 ¶¶10 & 12. And, both of EMC’s insureds,

Milam and SSES, performed work on the reservation during the time of the harm. Doc.

1-2, at 95-96 ¶¶9-13. Their presence on the reservation was not incidental to the spill

either; rather, SSES was contracted by Pic-N-Run to “remove the underground storage

tanks (USTs) at the Site and oversee installation of an above-ground storage tank

system (AST)” and Milam was hired separately by Pic-N-Run to renovate the USTs.

Doc. 1-2, at 95-96 ¶¶ 11-12. Therefore, both of EMC’s insureds were directly involved

with the Site, and the Nation has suffered harm directly from their work on its land

while covered by EMC’s general liability policies. Doc. 1-2, at 94 ¶ 1. Accordingly,

because the Nation is a tribal party, and the situs of the harm occurred on the

reservation, this Court “has no option but to defer [to the tribal court].” Stock W. Corp.,

942 F.2d 655, 661 (9th Cir. 1991).

10 Nályééh also is also a contractual cause of action under Navajo law. See Section

IV(d)(ii) below.


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In this case, the Nation has subject matter jurisdiction because the

exclusion/regulation analysis applies equally to non-member conduct on the

reservation. Namely, the Water Wheel analysis applies to this action because the

Nation could exclude Milam and SSES as non-members. Moreover, because there

has been no evidence provided that Milam or SSES’s general liability policies with

EMC contained a territorial limitation—that excluded coverage for the Navajo

Nation—EMC is subject to suit in any forum that is not excluded from its coverage.

See Farmers Ins. Exch. v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 914 (9th

Cir. 1990) (stating that if an insurance company fails to include a territorial exclusion

in its policy, it will be subject to suit in “any forum where the insured risk traveled.”)

(hereinafter “Portage”); see also Stump, 191 F.3d 1071, 1075 (9th Cir. 1999) (stating

that a colorable claim of tribal court jurisdiction exists under the Portage analysis).

Finally, because the Nation is also alleging a breach of the duty to defend and

indemnify as a third-party, EMC’s conduct arises on the reservation because but for

these obligations of EMC—regarding the harm allegedly caused by its insureds on

the reservation—"this suit would not have arisen.” See Portage, at 914-15 (9th Cir.

1990); see also Stump, 191 F.3d 1071, 1075 (9th Cir. 1999) (stating “where an off-

reservation insurer was sued for refusal to settle a claim arising in Indian country.

The authorities thus suggest that the estates' bad faith claim should probably be

considered to have arisen on the reservation.”); Doc. 1-2, at 76-79 ¶¶70-86.

Therefore, because the Nation has the right to exclude the insureds from its

own land, and regulate their conduct on the reservation, the Nation also has subject


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matter jurisdiction over claims involving their conduct—including their insurers—

on the reservation for allegedly harming tribal land and water. Thus, EMCC cannot

show that the Nation cannot regulate the harm allegedly suffered by the Nation

because the Nation has the right to exclude EMC and its insureds—and, therefore,

must have the lessor right to regulate their conduct on its reservation. See Turtle Mt.

Fleet, No. 1:12-cv-00094, 2014 U.S. Dist. LEXIS 65748, at *33 (D.N.D. May 12,

2014).

i. Response to EMC’s Window Rock Claims.

In its arguments regarding Window Rock, EMC claims that Window Rock is

distinguishable because “EMC undertook no activity on tribal lands.” Doc. 15, at 14.

EMC points out that it issued two insurance policies to non-Indians off the reservation,

and that it therefore allegedly did not partake in any conduct on the reservation. Id.

EMC also states that this matter is more like Philip Morris than Window Rock. Id.

Here, however, these claims are at odds with established precedent.

Though it was an exhaustion case, Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9

(1987), similarly involved an insurance company seeking to get out of a tribal court

claim that it had “no duty to defend or indemnify” a claim that fell outside its insurance

policy. Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 13, 107 S. Ct. 971, 974 (1987)

(hereinafter “LaPlante”). However, in LaPlante, the Supreme Court stated that “[c]ivil

jurisdiction over such activities presumptively lies in the tribal courts.” LaPlante, 480

U.S. 9, 18 (1987). The Ninth Circuit expanded upon this holding in Stump by stating

that a claim against an insurance company for bad faith “should probably be considered


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to have arisen on the reservation” where the accident occurred on a reservation. See

Stump, 191 F.3d 1071, 1075 (9th Cir. 1999) (discussing a colorable claim of tribal

court jurisdiction). Various district courts in the Ninth circuit have come to similar

conclusions. See Admiral, No. 5:12-cv-01266-LHK, 2012 U.S. Dist. LEXIS 48595, at

*15 (N.D. Cal. Apr. 4, 2012) (stating that Stump stands for the proposition that if an

insured causes harm on the reservation, a claim may arise against the insurer on the

reservation.); see also Turtle Mt. Fleet, No. 1:12-cv-00094, 2014 U.S. Dist. LEXIS

65748, at *32 (D.N.D. May 12, 2014) (holding that a tribal court had jurisdiction over

an insurer where its insured caused tortious harm to “property on the reservation.”);

see also Landmark Golf P'ship v. Las Vegas Paiute Tribe, 49 F. Supp. 2d 1169, 1175-

76 (D. Nev. 1999) (stating that a claim is a “reservation affair” where a dispute impacts

a tribe’s “property interests”). Besides citing to LaPlante, Stump also cites to Portage

for the proposition that an insurer is subject to suit on a reservation wherever its

insureds travel within their policy coverage. Stump, 191 F.3d 1071, 1075 (9th Cir.

1999). This concept in Portage is that a claim regarding a breach of an insurer’s

“obligation to indemnify and defend the insured” itself creates a cause of action where

its insured travel and causes injury because “‘but for those contacts, the cause [of

action] would not have arisen.” Portage, 907 F.2d 911, 914 (9th Cir. 1990). Therefore,

EMC has similarly created a cause of action on the reservation here because its

insureds engaged in commercial activities on tribal trust land on the reservation, with

no territorial restriction as to EMC’s coverage, and caused harm to that trust land. See

Doc. 1-2, at 94 ¶1. And, “but for” EMC’s alleged breach of its obligation to defend


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and indemnify its insureds—along with the claim of nályééh—the cause of action

against EMC would not have arisen. Thus, EMC has indeed performed conduct on the

reservation by allowing—without a territorial exclusion—its insureds to engage in

commercial activities on tribal trust land on the reservation; and, subsequently

allegedly breaching its duty to defend and indemnify said insureds for their conduct

on the reservation. Indeed, “but for” EMC’s alleged breach of these duties, the

underlying cause of action would not have arisen in the Chinle District Court.

Thus, EMC has engaged in conduct on the reservation that can be regulated

through a tort action. See Turtle Mt. Fleet, No. 1:12-cv-00094, 2014 U.S. Dist. LEXIS

65748, at *33-35 (D.N.D. May 12, 2014); see also Section IV(b) above.

c. The Chinle District Court Has Jurisdiction under the Second Montana

Exception.

Even assuming Montana applied here, under its second exception, a non-

member is subject to tribal jurisdiction where their conduct “threatens or has some

direct effect on the political integrity, the economic security, or the health or welfare

of the tribe.” Montana, 450 U.S. at 566. The second exception is met where a tribe

has been deprived of “its power to govern and regulate its own land.” Water Wheel,

642 F.3d at 819. The Ninth Circuit has “held that . . . contamination of a tribe's water

quality . . . [is] sufficient to sustain tribal jurisdiction” under the second Montana

exception. Rincon Mushroom Corp. of Am. v. Mazzetti, 490 F. App'x 11, 13 (9th Cir.

2012) (citing Montana v. EPA, 137 F.3d 1135, 1139-40 (9th Cir. 1998)). Therefore,

because the harm allegedly suffered here is the contamination of the Nation’s


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groundwater, Montana’s second exception should be held to apply. Doc. 1-2, at 97

¶19.

i. Response to EMC’s Montana Claims.

In its Motion, EMC claims that its denial of coverage does not threaten the

health and welfare of the Nation sufficient to meet Montana’s second exception

because it did not engage in any conduct on the reservation. Doc. 15, at 9. Specifically,

EMC claims that it, as opposed to its insureds, did not engage in any conduct on the

reservation. Id., at 9-10. EMC also claims that its denial of coverage does not threaten

the health or welfare of the Nation. Id., at 10. In support of its proposition, EMC cites

to several cases. Id., at 10-12.

In its Motion, EMC fails to recognize that its conduct, a denial of coverage, has

caused harm on the reservation, and, that the Nation may generally regulate insurers

who allow their insureds on the reservation. See Sections IV(b)-(b)(i) above. And, as

it was discussed above, “but for” EMC’s denial, the Nation would not have a cause of

action against EMC. See Portage, 907 F.2d 911, 914 (9th Cir. 1990); see also Admiral,

No. 5:12-cv-01266-LHK, 2012 U.S. Dist. LEXIS 48595, at *15 (N.D. Cal. Apr. 4,

2012) (stating that if an insured causes harm on the reservation, a claim may arise

against the insurer on the reservation); see also Turtle Mt. Fleet, No. 1:12-cv-00094,

2014 U.S. Dist. LEXIS 65748, at *32 (D.N.D. May 12, 2014) (holding that a tribal

court had jurisdiction over an insurer where its insured caused tortious harm to

“property on the reservation.”). “Thus, the mere fact that [EMC] is located off the

reservation is not sufficient to find that the claim arose off the reservation. . . ..


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[G]iven that the insurance policy at issue covered travel on the reservation, . . . and the

dispute arose out of the insurance coverage.” Admiral, No. 5:12-cv-01266-LHK, 2012

U.S. Dist. LEXIS 48595, at *15 (N.D. Cal. Apr. 4, 2012). Accordingly, a cause of

action has arisen against EMC on the reservation given its conduct and that it allowed

its insured to travel on the reservation. See Sections IV(b)-(b)(i) above.

What’s more, in support of its proposition, EMC cites several inapplicable

cases. Namely, EMC cites to Phillip Morris USA, Inc. v. King Mountain Tobacco Co.,

569 F.3d 932 (9th Cir. 2009), Plains Commerce Bank, Strate v. A-1 Contractors, 520

U.S. 438 (1997), and Atkinson Trading Co. v. Shirley, 532 U.S. 645 (2001). However,

the analysis from these cases is inapplicable because all these matters did not involve

tribal trust land, like the case here. Doc. 1-2, at 94 ¶1. And, the Ninth Circuit has held

that these cases do not apply where “the activity in question occurred off reservation.”

Water Wheel, 642 F.3d 802, 815 (9th Cir. 2011). Thus, these matters simply are not

controlling.

Additionally, EMC cites to McKesson Corp. v. Hembree, 2018 WL 340042

(N.D. Okla., filed Jan. 9, 2018) (hereinafter “Hembree”), Kodiak Oil & Gas United

States, Inc. v. Burr, 303 F. Supp. 3d 964, 982 (D.N.D. 2018) (hereinafter “Kodiak

Oil”), and Stifel v. Lac Du Flambeau Band of Lake Superior Chippewa Indians, 2014

WL 12489707 (W.D. Wis. 2014) (hereinafter “Lac Du Flambeau”). Doc. 15, at 11-12.

However, again, these matters are distinguishable. In Hembree, besides being an

inapplicable Tenth Circuit case, the court there explained that the harm was regarding

“actions that threatened an individual tribal member but do not threaten the Tribe as a


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whole.” Hembree, No. 17-CV-323-TCK-FHM, 2018 U.S. Dist. LEXIS 3700, at *29

(N.D. Okla. Jan. 9, 2018) (citing Norton v. Ute Indian Tribe of the Uintah & Ouray

Reservation, 862 F.3d 1236, 1247 (10th Cir. 2017). Here, unlike Hembree, the harm

being alleged is harm against the Nation itself, as landowner of the trust parcel and the

water located below it. Specifically, the Nation has alleged its water has been

contaminated and its land has been damaged due to contamination. Doc. 1-2, at 94 ¶1;

Doc. 1-2, at 97 ¶ 19. Therefore, the harm does “threaten the Tribe as a whole” because

it’s the Nation’s land that has allegedly been damaged and the Nation’s water that has

allegedly been contaminated; thus, Hembree is inapplicable.

Moreover, Kodiak Oil held that the tribe could not adjudicate the claims that

occurred on allotments under the second Montana exception because “such flaring and

enforcement of regulations solely lies with the federal government, through its various

agencies, and outside the control of tribes.” Kodiak Oil, 303 F. Supp. 3d 964, 982

(D.N.D. 2018). Here, in contrast, the action occurred on trust land, not allotments, and

there are no similar federal regulations that preempt the Nation’s claims. See Section

IV(d) below. Thus, Kodiak Oil is inapplicable as well.

What’s more, Lac Du Flambeau, besides being an inapplicable Seventh Circuit

matter, focused on “the financial consequences of adhering to freely negotiated

commercial transactions” between the tribe and a bond company. Stifel v. Lac DU

Flambeau Band of Lake Superior Chippewa Indians, 807 F.3d 184, 209 (7th Cir. 2015)

(Seventh Circuit case reviewing Lac Du Flambeau). Moreover, critical aspects of this

case involved a waiver of sovereign immunity and a forum selection clause that were


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part of the commercial transactions. See Id., at 202, 212. Here, however, unlike Lac

Du Flambeau, the focus of the second Montana exception is the alleged harm to the

Nation’s water and land, not the financial consequences of a bond transaction and a

forum selection clause. And, the Ninth Circuit, unlike the Seventh Circuit, has already

“held that . . . contamination of a tribe's water quality . . . [is] sufficient to sustain tribal

jurisdiction” under the second Montana exception. Rincon Mushroom Corp., 490 F.

App’x at 13 (9th Cir. 2012) (citing Montana v. EPA, 137 F.3d 1135, 1139-40 (9th Cir.

1998) for this proposition). Therefore, Lac Du Flambeau is inapplicable because the

harm suffered here is the contamination of the Nation’s water and land on the

reservation and the failure to indemnify and pay for such damage under an insurance

policy; and, the Ninth Circuit has previously held that such a claim is “sufficient to

sustain tribal jurisdiction” unlike a claim that focuses on financial consequences of

adhering to a commercial transaction with a forum selection clause.

Thus, all the arguments made by EMC regarding Montana’s second exception

are unavailing and should be ignored.

d. Response to EMC’s RCRA Claims.

i. The Nation’s Claims against EMC Cannot Be Brought as a RCRA

Citizen Suit.

EMC argues that the Nation was required to bring its claims against EMC under

RCRA, and not under common law. Doc. 15, at 14-16. However, the Nation’s claims

against EMC are based on EMC’s duty as an insurance company to defend and

indemnify its policy-holders and on the Navajo concept of nályééh; these claims are


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not even cognizable under RCRA, but only under state and tribal law.

The RCRA § 7002 citizen suit provision, 42 U.S.C. § 6972, allows any person

to bring a civil action against any other person who either is in violation of RCRA or

“has contributed or . . . is contributing to the past or present handling, storage,

treatment, transportation or disposal of any solid or hazardous waste which may

present an imminent and substantial endangerment to health or the environment.” Id.

§ 7002(a)(1)(A) and (B). There is no evidence that EMC, which insured a construction

contractor at the Pic-N-Run site, either violated RCRA or contributed to the handling,

storage, treatment, transportation or disposal of solid or hazardous waste at the site that

presents an imminent and substantial endangerment to health and the environment. As

the court found in Zands v. Nelson, 797 F. Supp. 805, 809 (S.D. Cal. 1992) (Zands II),

there must be “a causal relationship between a defendant and an imminent and

substantial endangerment.” (Citation omitted.) See also Delaware Riverkeeper

Network v. Soil Safe, Inc., 223 F. Supp. 3d 231, 243 (D.N.J. 2016) (noting the necessity

of a causal relationship); New York Communities for Change v. New York City Dep’t

of Education, 2012 WL 7807955 at *23 (E.D.N.Y. Aug. 29, 2012) (citing Zands II and

noting the necessity of a causal relationship); Aurora Nat. Bank v. Tri Star Marketing,

Inc., 990 F. Supp. 1020, 1028 (N.D. Ill. 1998) (same).

Consistent with that conclusion is the fact that EPA did not issue its RCRA

administrative order against any of the insurance companies. See EPA Order; Doc.

15-1. EPA issued its order under RCRA § 7003, 42 U.S.C. § 6973, which contains the

same requirements as RCRA § 7002(a)(1)(B): EPA may bring suit or issue an order to


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protect public health and the environment from imminent and substantial

endangerment against any person “who has contributed or is contributing to” handling,

storage, treatment, transportation or disposal of the solid or hazardous waste that is

posing the endangerment, and that does not include the insurance companies. See

Doc. 15-1, at 17-18 ¶¶ 79(n) – (u) (finding the lessees, owners, and operators of the

Pic-N-Run gas station and the construction companies working at the site at the time

of the release to have “caused or contributed” to the endangerment to human health

and the environment posed by the gasoline that was released at the site).

The Nation therefore did not and could not bring a RCRA citizen suit against

EMC. Instead, it brought its claims under common law. Moreover, because the Nation

did not bring a RCRA citizen suit, the Nation’s claims cannot be dismissed for being

premature under RCRA § 7002(b)(2)(B)(iv), as that timing provision applies only to

RCRA citizen suits. That provision would not apply in any event, because it requires

that a responsible party be “diligently conducting a removal action, Remedial

Investigation and Feasibility Study, or proceeding with a remedial action.” Id. Such

is not the case here, unfortunately, where the contamination at the Pic-N-Run site

continues largely unabated due to the parties’ inability or reluctance to pay to address

it.11

11 The release at issue occurred in 2005 yet, apart from some preliminary

investigation and planning work conducted in 2008, none of the responsible parties

has addressed the contamination. See Doc. 15-1, at 10 ¶ 30.


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ii. The Nation is Seeking Compensation for Damages to Navajo

Nation Land and Water, which is Not Available under RCRA.

Moreover, the Nation is not seeking to enforce the EPA Order, and EMC’s

statement that “the tribal court . . . held that the Nation had standing to enforce the

EPA Order,” Doc. 15, at 15, completely mischaracterizes the tribal court’s decision.

Rather, the tribal court found that the EPA Order, by identifying Milam as EMC’s

insured and requiring Milam, as a responsible party, to perform cleanup at the site,

gave the Nation standing to sue EMC to enforce Milam’s insurance policy (not the

Order). See Doc. 1-2, at 111; Id. at 113 (“The Nation is not attempting to enforce

EPA’s Order.”). The EPA Order contains detailed provisions regarding the specific

site assessment and cleanup work that must be performed. See Doc. 15-1, at 20-25 ¶¶

84-110. The Nation seeks declaratory and monetary relief related to damages and the

cost of cleanup, based on common law claims.

The Nation’s claim for nályééh is essentially one for compensation. Such a

claim cannot be brought under RCRA, which addresses remediation of a site and not

compensation for damages. Meghrig v. KFC Western, Inc., 516 U.S. 479, 483-86

(1996) (RCRA is designed to prevent environmental harm, not to compensate parties

for cleanup efforts); South Carolina Dep’t of Health & Envtl. Control v. Commerce &

Industry Ins. Co., 372 F.3d 245, 255 (4th Cir. 2004) (“the plain language of the RCRA

Provision convinces us that it applies only to claims concerning present and future

threats to human health and the environment, as opposed to claims seeking to recover

the costs of environmental cleanup activities”); Albany Bank & Trust Co. v. Exxon


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Mobil Corp., 310 F.3d 969, 974 (7th Cir. 2002) (“The plain language of 42 U.S.C. §

6972(a) bars damages and ‘deliberately limits RCRA’s remedies to injunctive relief.’”)

(quoting Avondale Fed. Sav. Bank v. Amoco Oil Co., 170 F.3d 692, 694 (7th

Cir.1999)); Furrer v. Brown, 62 F.3d 1092, 1098 (8th Cir. 1995) (“RCRA’s goal is to

prevent the creation of hazardous waste sites, rather than to promote the cleanup of

existing sites.”).

EMC’s comparison of the Nation’s claims to those of Shiprock, see Doc. 15, at

15, is therefore inapt, because Shiprock brought its claims for contribution under

RCRA. Further, because the Nation’s claims are not covered by RCRA, they cannot

be viewed as constituting a pre-enforcement challenge to the EPA Order, unlike

Shiprock’s claims against the Nation in Felix v. Pic-N-Run, Inc., No. CV 09-8015,

2010 U.S. Dist. LEXIS 483564 (D. Ariz. May 4, 2010) (dismissing RCRA claims).

See Ross Incineration Servs., Inc. v. Browner, 118 F. Supp. 2d 837, 843 (N.D. Ohio

2000); United States v. Mobil Oil Co., 1997 WL 1048911 *6 (E.D.N.Y. 1997).

iii. The Nation’s Claims Involving the Scope of Insurance Coverage

and Its Claim for Nályééh are Properly Brought in Tribal Court.

The Supreme Court in Meghrig specifically stated that claims for contribution

and indemnity may be asserted under state law. 516 U.S. at 487. The Nation’s claim

for nályééh and its requests for declaratory judgment as to EMC’s duty to defend and

duty to indemnify Milam SSES are therefore properly brought in the courts of the

Nation under Navajo law.

In addition, claims involving the scope of insurance coverage, such as the


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Nation’s claims for declaratory judgment, are contractual—or tort claims as discussed

in Section IV(b) above—and for this reason also they can be brought in state or tribal

court. In fact, they are frequently brought there, as EMC itself has done. Emps. Mut.

Cas. Co. v. Milam Bldg. Assocs., Inc., No. CV2010-00597 (Super. Ct. of Ariz.,

Coconino Cty.) (judgment issued Nov. 3, 2011) (addressing EMC policy issued to

Milam with respect to the Pic-N-Run gasoline spill); Doc. 1-2, at 2; see also Johnson

Controls, Inc. v. Employers Ins. of Wausau, 264 Wis.2d 60, 665 N.W.2d 257 (Wis.

2003) (state insurance coverage case relating to damages incurred under federal

environmental laws and involving Zurich American Insurance Company, another

insurance company defendant in the Nation’s case in Chinle District Court); Benalli v.

First Nat. Ins. Co. of America, 7 Nav. R. 329 (Nav. Sup. Ct. 1998) (determining

whether uninsured motorist coverage was available and whether duplicate insurance

policies could be “stacked” for a single incident); Allstate Indemnity Co. v. Blackgoat,

8 Nav. R. 660(Nav. Sup. Ct. 2005) (considering contractual provisions capping

liability and prejudgment interest issue, and applying public policy principles

manifested in the concept of nályééh).

iv. RCRA Does Not Preempt Common Law Claims.

Finally, RCRA specifically preserves common law claims, so no valid

argument can be made that the Nation’s claims against EMC are preempted by RCRA.

RCRA § 7002(f) preserves “any right which any person . . . may have under any statute

or common law to seek enforcement of any standard or requirement relating to the

management of . . . hazardous waste, or to seek any other relief . . . .” See Meghrig,


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516 U.S. at 487 (RCRA “preserv[es] remedies under statutory and common law”); see,

e.g., Raytheon Co. v. McGraw-Edison Co., Inc., 979 F. Supp. 858, 865 (E.D. Wis.

1997) (hearing RCRA claims along with eleven related state law claims); Murray v.

Bath Iron Works Corp., 867 F. Supp. 33, 47 (D. Maine 1994) (hearing RCRA claims

along with state law claims for trespass, nuisance, negligence, and failure to warn);

City of Toledo v. Beazer Materials & Services, Inc., 833 F. Supp. 646 (N.D. Ohio

1993) (assertion of state common law claims for nuisance and trespass addressed along

with RCRA claims). Thus this Court made clear in Felix that the common law claims

at issue in that case, many of which were similar to the Nation’s claims against EMC,

were entirely separate from the RCRA claims. The Court stated that its dismissal of

the parties’ RCRA claims “[did] not touch the parties’ common law claims.” Felix,

2010 U.S. Dist. LEXIS 483564 at *16.

V. Conclusion.

Therefore, for all the reasons set forth above, this Court should grant the

Nation’s request for summary judgment, and, deny EMC’s Complaint and Motion.

DATED, this 9th day of November 2018.

Respectfully submitted,

By: /s/ Paul Spruhan

Paul Spruhan, Assistant Attorney General

Navajo Nation Department of Justice

Post Office Box 2010

Window Rock, Arizona 86515-2010


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Colin Bradley, Esq.

Colin Bradley Law, PLLC

2600 North 44th Street, Suite B-101

Phoenix, Arizona 85008

Attorneys for Defendants

CERTIFICATE OF SERVICE

I hereby certify that on November 9, 2018, I electronically submitted

the attached document to the Clerk’s Office using the CM/ECF System for

filing and transmittal of a Notice of Electronic Filing to the following CM/ECF

registrants:

Michael J. Raymond

Raymond, Greer & McCarthy, P.C.

7373 N. Scottsdale Rd., Suite D-210

Scottsdale, Arizona 85253

[email protected]

Attorney for the Plaintiff

/s/ Paul Spruhan



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Table of Contents

Exhibit A—Stipulated Facts re Subject Matter Jurisdiction 06/21/16









