United States District Court, D. Colorado
ORDER ADOPTING MARCH 21, 2017 RECOMMENDATION OF THE
MAGISTRATE JUDGE AND GRANTING DEFENDANTS' MOTION TO
William J. Martínez United States District Judge
a dispute between adjacent private landowners who live within
the boundaries of the Southern Ute Indian Reservation in
southwestern Colorado. Plaintiffs claim that Defendants'
coal-fired boiler sends harmful pollutants across
Plaintiffs' property. (ECF No. 1.) Plaintiffs have sued
under the Clean Air Act, 42 U.S.C. §§ 7401 et
seq., as well as under common law theories such as
nuisance and invasion of privacy. Plaintiffs moved for a
preliminary injunction (ECF No. 9), which the undersigned
referred to U.S. Magistrate Judge Nina Y. Wang (ECF No. 11).
Judge Wang could hold a hearing on the request for a
preliminary injunction, Defendants raised what they
characterized as a question of subject matter jurisdiction.
Because Plaintiffs and Defendants are both Colorado
residents, federal court jurisdiction turns on the viability
of Plaintiffs' Clean Air Act claim. Plaintiffs ground
their Clean Air Act claim entirely in an opacity standard
promulgated by the State of Colorado under its authority from
the federal Environmental Protection Agency
(“EPA”) to carry out the mandates of the Clean
Air Act. (ECF No. 1 ¶¶ 21-27, 37-42.) Defendants
filed a motion to dismiss, however, arguing that the Southern
Ute Tribe has exclusive jurisdiction over emissions standards
from sources located within the Reservation's borders,
and that the Tribe has no opacity standard similar to
Colorado's. (ECF No. 20.)
Judge Wang's familiarity with the case, the undersigned
referred this motion to her for a recommendation. (ECF No.
23.) After briefing and oral argument (including an amicus
brief and oral argument from the Southern Ute Tribe itself),
Judge Wang issued her recommendation on March 21, 2017,
recommending that Defendants' motion be granted
(“Recommendation”). (ECF No. 32.) Plaintiffs then
filed a timely objection under Federal Rule of Civil
Procedure 72(b)(2) (ECF No. 33), which is presently before
this posture, Rule 72(b)(3) requires that the Court
“determine de novo any part of the magistrate
judge's [recommendation] that has been properly objected
to.” An objection to a recommendation is properly made
if it is both timely and specific. United States v. One
Parcel of Real Prop. Known as 2121 East 30th St., 73
F.3d 1057, 1059 (10th Cir. 1996). An objection is
sufficiently specific if it “enables the district judge
to focus attention on those issues-factual and legal-that are
at the heart of the parties' dispute.” Id.
(quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)).
In conducting its review, “[t]he district court judge
may accept, reject, or modify the recommendation; receive
further evidence; or return the matter to the magistrate
judge with instructions.” Id.
undersigned cannot improve on Judge Wang's thorough
recitation of the relevant facts and statutory background,
nor on her careful analysis of the statutory and regulatory
questions presented. Familiarity with the Recommendation is
therefore presumed and the Court turns directly to
Plaintiffs' two bases for objection.
Plaintiffs argue that if Colorado's opacity standard does
not apply on the Southern Ute Reservation, it would
“leave broad categories of polluting activities
completely unregulated and Plaintiffs without protection or
remedy under the [Clean Air Act]. Such [a] gap was not
Congress'[s] intent under the [Clean Air Act] . . .
.” (ECF No. 33 at 3.) This objection is without
foundation for at least two reasons. First, the Clean Air Act
itself does not dictate any opacity standard, or even that
states and tribes must have an opacity standard. Second,
Plaintiffs are not without any remedy: the presence or
absence of an opacity standard has no bearing on their
ability to bring a nuisance action or other similar actions
under the common law.
Plaintiffs argue that the Intergovernmental Agreement
(“IGA”) establishing the Tribe's sole
jurisdiction over air quality standards within the
Reservation, see Colo. Rev. Stat. § 24-62-101,
is ambiguous. (ECF No. 33 at 6.) But Plaintiffs do not
specify what they believe to be ambiguous. From the context,
it appears Plaintiffs may be referring to slight differences
between the definitions of “Development Phase”
and “Program Phase” in the IGA. Specifically, the
IGA defines Development Phase, in part, as “the time
period . . . before . . . delegation by the EPA of any Clean
Air Act programs [to the Tribe]”; whereas it defines
Program Phase, in part, as “the time period . . . after
. . . actual delegation of Clean Air Act Programs by the EPA
[to the Tribe].” Colo. Rev. Stat. § 24-62-101,
art. V, §§ B & C. the Development Phase
definition contains the word “any” before
“Clean Air Act Programs, ” while the Program
Phase definition does not. And “any” was a
keyword on which Judge Wang relied in her analysis. (ECF No.
32 at 18.) Plaintiffs seem to be saying that the Development
Phase ends with the delegation of any particular Clean Air
Act program to the Tribe, but the Program Phase does not
begin until the EPA delegates all Clean Air Act
programs to the Tribe. That is not what the IGA says,
however, and-as Judge Wang cogently observed-Plaintiffs'
interpretation creates more ambiguity: “To read
[‘all'] into the definition of Program Phase would
necessarily create an undefined gap following the delegation
of a single [Clean Air Act] program (i.e., after the
Development Phase) but before the delegation of all [Clean
Air Act] programs (i.e., the beginning of the
Program Phase).” (ECF No. 32 at 19.) Thus, this
objection is unfounded, and the Court agrees that
Plaintiffs' Clean Air Act claim must be dismissed.
Wang further recommends that the Court not retain
jurisdiction over Plaintiffs' state law claims. (ECF No.
32 at 21 (citing, among other things, 28 U.S.C. §
1367(c)(3) and Wittner v. Banner Health, 720 F.3d
770, 781 (10th Cir. 2013)).) Whether the Court may even
consider retaining jurisdiction depends on whether the lack
of an applicable opacity standard is a jurisdictional defect
(i.e., it deprives Plaintiffs of the citizen-suit
remedy under the Clean Air Act, thus eliminating the
statutory basis for a private suit in federal court,
see ECF No. 20 at 2-3) or a merits defect
(i.e., it simply shows that Plaintiffs' citizen
suit fails on its elements, see ECF No. 26 at 3-4).
Judge Wang did not directly address this distinction, but her
Recommendation that the Court exercise its discretion to
dismiss the state law claims shows that she adopted the
merits defect view.
Court agrees with Judge Wang. In the past couple of decades,
the Supreme Court has repeatedly cautioned lower courts to
treat the label “jurisdictional” carefully and
only apply it when Congress clearly intended some sort of
statutory mechanism to have jurisdictional consequences.
See, e.g., Arbaugh v. Y & H Corp., 546
U.S. 500, 511 (2006). The Court is not persuaded that a Clean
Air Act citizen suit based on what turns out to be an
inapplicable air quality standard means that the Court lacked
subject matter jurisdiction from the outset. Thus,
Plaintiffs' Clean Air Act claim fails on its merits, and
the Court agrees with Judge Wang that retaining jurisdiction
over Plaintiffs' state law claims would be inappropriate
given the relatively early stage of these proceedings, as
well as the geographic remoteness of this courthouse to the
parties, their properties, and most of the likely witnesses
and evidence. “[T]o the extent that Plaintiffs intend
to proceed on their state law claims against Defendants, it
appears more appropriate for such claims to be adjudicated in
a state court that is geographically proximate to the
Parties.” (ECF No. 32 at 21.)
reasons set forth above the Court ORDERS as follows:
1. Plaintiffs' Objection (ECF No. 33) is OVERRULED;
2. Defendants' Motion to Dismiss (ECF No. 20) is GRANTED;
3. Plaintiffs' Motion for Preliminary Injunction (ECF No.
9) is ...