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El Paso Natural Gas Co. v. Neztsosie

Citation: 28 ELR 20550
No. 96-17121, -17139, 136 F.3d 610/(9th Cir., 02/11/1998, 04/27/1998)

The court holds that the Price-Anderson Act does not expressly prohibit the Navajo tribal court from determining its jurisdiction over tribal members' personal injury and wrongful death claims arising from uranium mining activities on the Navajo Nation Reservation. The court first holds that defendant-mining companies have not exhausted their tribal court remedies. Instead, the mining companies chose to file actions in federal district court seeking to enjoin the Navajo tribal court from asserting jurisdiction over the tribal members' claims. Unless an exception to the tribal exhaustion requirement applies, such as an express jurisdictional prohibition, the district court was obligated to abstain from ruling on the tribal court's jurisdiction.

The court next holds sua sponte that the Price-Anderson Act contains no express prohibition of tribal court jurisdiction. Price-Anderson provides for concurrent rather than exclusive jurisdiction over claims arising from nuclear incidents. It merely grants defendants the right, rather than the obligation, to remove such cases to federal court. Cases interpreting the 1988 Price-Anderson amendments are inapplicable because they only address federal-state jurisdictional issues relating to the Act. They do not address Native American tribes or tribal sovereignty. Thus, even if Price-Anderson preempts state court jurisdiction, there is no express prohibition of tribal court jurisdiction. And allowing the tribal court to determine its jurisdiction over the tribal members' personal injury and wrongful death claims will preserve tribal sovereignty.

A dissenting judge would hold that there are no claims that can be made in tribal court because the members did not appeal the injunction against litigating Price-Anderson claims in tribal court, and the members' claims are Price-Anderson claims.

Counsel for Plaintiff
Eric A. Mark
O'Connor, Cavanagh, Anderson, Killingsworth & Beshears
One E. Camelback Rd., Ste. 1100, Phoenix AZ 85012
(602) 263-2400

Counsel for Defendants
Seth R. Lesser
Bernstein, Litowitz, Berger & Grossmann
1285 Avenue of the Americas, New York NY 10019
(212) 554-1400

Before Ferguson and Kleinfeld, JJ.