Case 2:19-cv-00046-KG-SMV Document 70 Filed 08/18/22 Page 1 of 19
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`Case 2:19-cv-00046-KG-SMV Document 70 Filed 08/18/22 Page 1 of 19
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`IN THE UNITED STATESDISTRICT COURT
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`FOR THE DISTRICT OF NEW MEXICO
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`UNITED STATES OF AMERICA,
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`Plaintiff,
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`NEW MEXICO ENVIRONMENT
`DEPARTMENT,and JAMES KENNEY,
`Secretary (in his official capacity),
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`Defendants.
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`Case No. 19-CV-46 KG/SMV
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`MEMORANDUM OPINION AND ORDER
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`This matter is before the Court on cross-motions for summary judgment. Plaintiff United
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`States first filed its Motion for Summary Judgment.
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`(Doc. 58). Defendants New Mexico
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`Environment Department and James Kenney, Secretary, responded and cross-motioned for
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`summary judgment.
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`(Doc. 59). Both parties, in turn, replied. (Docs. 60, 61). The Court, having
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`consideredthe briefing and the applicable law, construing the matter as a state administrative
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`appeal, and finding the New Mexico Hazardous Waste Act requires the case go before the New
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`Mexico Court of Appeals, denies both motions and dismisses the case without prejudice.
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`Background
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`This case ascends from the runways of Cannon Air Force Base (“Cannon AFB”or “the
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`Base”) near Clovis, New Mexico, wherethe Air Force uses hazardousperfluoroalkyls chemicals,
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`commonlyreferred to as PFAS, to extinguishjet fuel fires. The United States challenges certain
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`terms in a hazardous waste permit issued by the New Mexico Environment Department (NMED)
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`for violating the New Mexico Hazardous Waste Act (HWA), NMSA § 74-4-1 et seq., andits
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`implementing regulations.
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`Case 2:19-cv-00046-KG-SMV Document 70 Filed 08/18/22 Page 2 of 19
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`The Federal Governmenthas recognized that PFAS havethe following potential
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`detrimental effects, among others, on humansand animals: increased cancer risk, liver damage,
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`decreasedfertility, heightened risk of asthma and thyroid disease, higher cholesterol, and a
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`decreased antibody response to vaccines. Agency for Toxic Substances and Disease Registry,
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`U.S. Department of Health and HumanServices, Toxicology Profile for Perfluoroalkyls (2021),
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`available at https://www.atsdr.cdc.gov/ToxProfiles/tp200.pdf.' Indeed, the Air Force
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`acknowledged the Environmental Protection Agency’s drinking water health advisory related to
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`PFASduring the permitting process in this case. Administrative Recordat 45, (Doc. 49) Ex. 3 at
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`That Cannon AFBuses and disposes of PFASis not in dispute—the underlying
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`administrative record extensively covers releases of PFAS at the Base. AR 34-131; 686-10558.
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`Around Cannon AFB, PFASrunoffhasreportedly created a “plume”in the groundwater system,
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`effectively destroying local dairy operations. Theresa Davis, Cannon PFAS Destroyed Longtime
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`Clovis Farmer’s Dairy, Albuquerque Journal, May 29, 2022,at https://www.abqjournal.com/
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`2503560/cannon-pfas-destroyed-longtime-clovis-farmers-dairy.html. PFAShas also appeared in
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`Clovis’ municipal drinking water. Press Release, New Mexico Environment Department, PFAS
`Deleted in Clovis Public Drinking Water System (Feb. 10, 2020), available at
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`https://www.env.nm.gov/wp-content/uploads/2020/02/2020-02-10-Clovis-PR-final.pdf.
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`The Resource Conservation and Recovery Act (RCRA)is the primary federal statute
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`regulating disposalof solid and hazardous waste. 42 U.S.C. § 6901 et seg. New Mexico can
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`| The court takes judicial notice of this and other facts. See Van Woudenbergv. Gibson, 211 F.3d
`560, 568 (10th Cir. 2000) (“[T[he court is permitted to take judicial notice of .
`.
`. facts whichare
`a matter of public record”) abrogated on other grounds, McGregor v. Gibson, 248 F.3d 946, 955
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`Case 2:19-cv-00046-KG-SMV Document 70 Filed 08/18/22 Page 3 of 19
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`regulate a federalinstallation like Cannon AFB because RCRA allows the EPA to authorize a
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`state to enforce its own hazardous waste program in lieu ofthe federal program. 42 U.S.C. §
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`6926(b). New Mexicois one suchstate which has been authorized to manage its own program,
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`codified in the state’s Hazardous Waste Act. See also 40 C.F.R. § 272.1601 (authorizing the
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`New Mexico hazardous waste program); NMAC § 20.4.1 (HWA implementing regulations).
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`In conjunction with that authorization, RCRA also contains an explicit waiver of federal
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`sovereign immunity, making federalfacilities “subject to” state requirements, “both substantive
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`and procedural[,]... in the same manner, and to the same extent, as any person is subject to such
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`requirements.” 42 U.S.C. § 6961(a); cf United Statesv. Washington, 142 S. Ct. 1976, 1982
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`(2022) (“The Constitution's Supremacy Clause generally immunizes the Federal Government
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`from state lawsthat directly regulate or discriminate against it. Congress, however, can authorize
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`such laws by waiving this constitutional immunity.”(internal citations omitted)).
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`States are empoweredto regulate above and beyond RCRA, which merely establishes
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`minimum standards. 42 U.S.C. §§ 6926, 6929; 40 C.F.R. § 271.1(i) (nothing in this subpart
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`precludesa State from...[a]dopting or enforcing requirements which are more stringent or more
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`extensive than those required underthis subpart.”); United States v. State ofColorado, 990 F.2d
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`1565, 1569 (10th Cir. 1993) (“RCRA sets a floornota ceiling forstate regulation of hazardous
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`wastes.”).7
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`2 At the time the Permit wasissued, the HWA, NMSA § 74-4-4(A), required the New Mexico
`Environmental Improvement Board to promulgate regulations “equivalent to and no more
`stringent than federal regulations.” 2010 N.M. Lawsch. 27 § 2 (emphasis added). In 2021,
`however, the legislature amended the HWA suchthat § 74-4-4(A) now requires the Board to
`adopt rules “that are equivalent to andatleastas stringentas federal regulations.” 2021 N.M.
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`Case 2:19-cv-00046-KG-SMV Document 70 Filed 08/18/22 Page 4 of 19
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`RCRA mandatesthat hazardous waste permits, like the oneat issue in this case, require
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`“corrective action for all releases of hazardous waste or constituents from any solid waste
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`managementunit[.]” 42 U.S.C. § 6924(u). HWAincorporates the same requirement. NMSA§
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`74-4-4.2(B) (“Hazardous waste permits shall require corrective action for all releases of
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`hazardous waste or constituents....”). Accordingto this legal authority, and against the backdrop
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`of PFAS’s known use and harmful impacts, when NMED renewed Cannon AFB’s hazardous
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`waste permit, it included PFASas a hazardous waste requiring corrective action. Permitat §
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`1.12, AR 011349, (Doc. 49) Ex. 21 at 213.
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`The United States initiated this lawsuit to challenge that definition of hazardous waste.
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`Critically, the nature of that challenge has evolved over the course ofthe litigation. Originally,
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`the United States alleged that the Permit’s definition of hazardous waste exceeded the scope of
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`Congress’ waiver of sovereign immunity in 42 U.S.C. § 6961(a). (Doc. 1) at § 22. NMEDfiled
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`a Motion to Dismiss, arguing for abstention in favorofthe parallel state case® andtesting the
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`sufficiency of the Complaint generally. (Doc. 4) at 4-9. The Court denied the Motion,
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`reasoningat that timethat the abstention doctrines did not apply, the United States stated a
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`plausible claim, and the Court had properjurisdiction all because the important federal
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`question—sovereign immunity—prevailed. See generally (Doc. 26); also, id. at 15 (“[T]he issue
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`in this case will involve consideration of federal law in interpreting the contours of RCRA’s
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`waiver of sovereign immunity[.]”).
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`Subsequently, the United States filed an Amended Complaint which substantially
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`changedits claims. See (Doc. 56). The United States abandonedits sovereign immunity
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`3 That case, United States v. N.M. Env’t Dep’t, Case No. A-1-CA-37887 (N.M.Ct. App., filed
`Jan. 17, 2019), is currently stayed pendingresolution ofthis case, see id. (Orderfiled April 10,
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`allegation. In its place, it now unequivocally appeals the Permit’s terms directly under New
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`Mexico’s Hazardous Waste Act:
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`The Permit constitutes in whole orin part, a “final administrative action,” subject
`to judicial review pursuant to [NMSA§ 74-14-4(A)]. Underthatstatute, the action
`shall be set asideifit is: “(1) arbitrary, capricious or an abuse of discretion; (2) not
`supported by substantial evidence in the record; or (3) otherwise not in accordance
`with law.” [NMSA§ 74-14-4(C)].
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`(Doc. 56) at J 17; see also id. at JJ 2-3, 25-31.
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`The United States seeks (1) a declaration that certain Permit termsare inconsistent with
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`the scope of “corrective action” in the HWAandin its implementing regulations; and (2) a
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`declaration that the termsare arbitrary, capricious, or an abuse ofdiscretion, not supported by
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`substantial evidencein the record, or otherwise not in accordance with the law. Jd. at 7. It
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`requests injunctiverelief to set aside the allegedly unlawful terms of the Permit. Jd. These
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`claimsbring the federal claimsinto alignment with the claims asserted in the state case. See
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`United States v. N.M. Env’t Dep’t, Case No. A-1-CA-37887 (N.M.Ct. App., filed Jan. 17, 2019);
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`- also (Doc.26) at 5 (describingthe parallel state case).
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`In its Motion for Summary Judgment, the United States again urges this Court to construe
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`the case as a state administrative appeal:
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`Neither this Court nor the Tenth Circuit has addressed the standard of review for a
`motion for summary judgment onaclaim under the HWA.... Under Olenhouse [v.
`Commodity Credit Corp., 42 F.3d 1560 (10th Cir. 1994)],a district court reviewing
`agency action “acts as an appellate court” and “employs summary judgment to
`decide, as a matter of law, whether the agency action is supported by the
`administrative record and otherwise consistent with the [Administrative Procedures
`Act] standard of review.” N.M. Health Connections v. U.S. Dep't of Health &
`HumanServs., 946 F.3d 1138, 1161 (10th Cir. 2019) (internal quotation marks and
`alteration omitted). This review is limited to the administrative record before the
`agencyat the time the decision was made. Jd. at 1161-62.
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`(Doc. 58-1) at 14-15.4
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`Nowthe parties present competing motions for summary judgment which raise myriad
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`issues, the core of which is whether the Permit’s terms run afoul of the HWA’s standard of
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`review. The Court, however, does not reach the substance of those issues. Instead, the Court
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`determinesit lacks jurisdiction to hear the claims in the Amended Complaint and dismisses the
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`case without prejudice.
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`Analysis
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`The Court concludes that an HWA administrative appeal, as the United States brings in
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`its Amended Complaint, must properly be decided by the New Mexico Court of Appeals and this
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`Court is without jurisdiction. Because the United States raises sovereign immunity as an
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`argument against subjectingit to the issue preservation requirement, the Court addresses that
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`federal question before otherwise dismissing the case.
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`A. The Court Lacks Jurisdiction to Hear this Claim
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`1. The HWA Directs Permit Appeals Only to the New Mexico Court ofAppeals
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`The HWA,which authorizesthis appeal, dictates exactly how such an action must be
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`brought:
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`A. Anyperson whois or maybe affected by any final administrative action of the
`board or the secretary may appealto the court ofappeals for furtherrelief within thirty
`daysafter the action. All appeals shall be upon the record before the board or the
`secretary.
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`C. Upon appeal, the court ofappeals shall set aside the action only ifit is found to
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`be:
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`arbitrary, capricious or an abuse ofdiscretion;
`(1)
`not supported by substantial evidence in the record; or
`(2)
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`4 In many instances, the original pagination ofthe briefing, as included by the parties in the
`documentfooter, differs from the pagination applied to documents by the Court’s electronic
`filing program andappearingin the header of each page. The Court refers here and elsewhere to
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`Case 2:19-cv-00046-KG-SMV Document 70 Filed 08/18/22 Page 7 of 19
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`(3)
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`otherwise not in accordance with law.
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`NMSA§ 74-4-14 (emphasis added). No court other than the New Mexico Court of Appealsis
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`contemplated. That is, by the clear terms of the HWA, the New Mexico Court of Appealsis the
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`only proper venuefor a permit appeal.
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`2. Because the HWA Creates an Exclusive Venue for Administrative Appeals,
`this Courtis Stripped ofJurisdiction
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`The HWA,byvesting exclusive jurisdiction for permit appeals in the New Mexico Court
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`of Appeals, precludes other courts from adjudicating such claims. The New Mexico Legislature
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`maycreate specific and exclusive appellate procedures understate law. “The Legislature has the
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`authority to establish appellate jurisdiction and to create a right of appeal.” Cordova vy.Cline,
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`2017-NMSC-020, § 15 (citing, amongother sources, N.M. Const. art. VI, § 2); see also Rule 1-
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`074(A) NMRA (stating that “appeals from administrative agencies [may be heard by] the district
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`courts when there is a statutory right ofreview to the district court” (emphasis added)).
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`Congress mayalso statutorily vest exclusive administrative appellate jurisdiction in
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`specific courts at the expense ofdistrict courts’ ordinary jurisdiction. “A statutory scheme of
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`administrative review followed by judicial review in a federal appellate court can preclude
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`district court jurisdiction overa plaintiff's statutory and constitutional claims if Congress’ intent
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`to precludedistrict court jurisdictionis ‘fairly discernible in the statutory scheme.’” Sec. People,
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`Inc. v. Iancu, 971 F.3d 1355, 1362 (Fed. Cir. 2020) (cleaned up), cert. denied sub nom.Sec.
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`People, Inc. v. Hirshfeld, 141 S. Ct. 2701, 210 L. Ed. 2d 871 (2021). All told, provided there is
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`“meaningful review” of given claims, Congress may require parties “to proceed exclusively
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`through the statutory review scheme”on an administrative appeal, skipping the federaldistrict
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`courts, even whereparties “raise constitutional challenges to federal statutes.” Elgin v. Dep't of
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`Federal courts have repeatedly applied these principles to federal statutory schemes. See
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`id. (holding Civil Service Reform Act provisionsentitling employee to appeal before Merit
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`Systems Protection Board and seek judicial review in Federal Circuit provided exclusive avenue
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`to judicial review, and allowing employeeto challenge employment action first in district court
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`wouldseriously undermine CSRA's objective of creating integrated scheme of review); Thunder
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`Basin Coal Co. v. Reich, 510 U.S. 200 (1994)(holding that administrative review scheme of the
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`Federal Mine Safety and Health Amendments Act of 1977, under which challenges are reviewed
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`by the Federal Mine Safety and Health Review Commission and then by appropriate court of
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`appeal, precluded district court jurisdiction); Sec. People, Inc., 971 F.3d at 1361-1363 (holding
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`that the America Invents Act provided exclusive review of certain Patent Trial and Appeal Board
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`decisionsat the Court of Appeals for the Federal Circuit and thus precluded district courts from
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`exercising Administrative Procedure Act jurisdiction over patent owner’s challenge.).
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`Turningto this case, the Court findsthat the “fairly discernable”intent of both the New
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`Mexico Legislature and Congressis thatall litigants, including the United States, must appeal
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`hazardous waste permits to the New Mexico Court of Appeals. As described above, the New
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`Mexico Legislature clearly directed that permit appeals be broughtdirectly and exclusively to the
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`New Mexico Court of Appeals.
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`Congress’ parallel intent is discernable in two ways. First, when New Mexico passed the
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`HWA,it did so under authority granted by Congress in RCRA. This shows Congress’ general
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`approval of HWA’s appellate scheme. And second, Congress demonstrated its specific intent
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`that the United States follow HWA’s appellate procedures whenit waived sovereign immunity.
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`RCRA explicitly subjects the federal governmentto “all Federal, State, interstate, and local
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`requirements, both substantive andprocedural[.|” 42 U.S.C. § 6961(a) (emphasis added).
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`Based on this, the Court determinesthat the United States exposeditself to the HWAinits
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`entirety, including its provisions for appealing permit terms. The Court thus concludes that these
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`fairly discernable expressionsoflegislative intent divest this Court ofjurisdiction.
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`Also weighingin favor ofthis conclusion, the Supreme Court has found that federal
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`courts do not generally have jurisdiction over state administrative appeals. E.g., Chi. R. I & P.
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`R. Co. v. Stude, 346 U.S. 574, 581 (1954) (“The United States District Court.. .does notsit to
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`review on appeal action taken administratively or judicially in a state proceeding. A state
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`legislature may not make a federal district court, a court of original jurisdiction, into an appellate
`tribunal or otherwise expandits jurisdiction.” (internal quotation marks and citations omitted)).
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`The Tenth Circuit faithfully applies that Supreme Court precedent. Trapp v. Goetz, 373 F.2d
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`380, 383 (10th Cir. 1966) (“[T]he United States District Court had no powerto consider an
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`appeal from the state administrative tribunal. Such a proceeding is not withinits statutory
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`jurisdiction.”). As one court putit: “Permitting the bypassing of state procedures would lead to
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`federal district courts becoming courts of review for state administrative agencies and to needless
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`conflict betweenfederal and state governments.” Allegheny Airlines, Inc. v. Pa. Pub. Util. Com.,
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`319 F. Supp. 407, 414 (E.D.Pa. 1970).
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`Finally, the United States has been a party to HWAappealactions in front of the New
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`Mexico Court of Appeals before, suggesting by history and practice that it is not only amenable
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`to that court but that it knowingly submittedto it as the review body for HWA permit appeals.
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`E.g., Nuclear Waste P'ship, LLC v. Nuclear Watch N.M., 2022-NMCA-014 (New Mexico Court
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`of Appeals determining that amendment to New Mexico hazardous waste permit issued to
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`United States Department of Energy did not violate HWA appeal standard). This phenomenonis
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`not novel; Congress, at times, subjects the United States to litigating state-governed issues in
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`state courts. For instance, in mass water rights adjudications, regarding which the McCarren
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`Amendment waived sovereign immunity in deference to state procedures, 43 U.S.C. § 666,the
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`United States must bring and defend water-rights claims accordingto states’ requirements,
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`whetherat state administrative agencies or state courts. E.g., United States v. State ofOr., 44
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`F.3d 758, 770 (9th Cir. 1994) (holding“that the Klamath Basin adjudicationis in fact the sort
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`of adjudication Congress meantto require the United States to participate in whenit passed the
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`McCarran Amendment’).
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`The intent ofthe state legislature was to create an exclusive permit review processat the
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`New Mexico Court of Appeals and the intent of Congress wasto subject the United Statesto that
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`procedure. Moreover, federal courts do not generally adjudicate state administrative appeals.
`For these reasons, this Court lacks jurisdictionover the permit appealclaimsin this action.
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`3. That the United States is PlaintiffDoes Not Grant This Court Jurisdiction
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`The Court plausibly has jurisdiction over this action from other independent sources. The
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`Court addresses those here, concluding none overcomethe conclusionthat the state appellate
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`schemestrips this Court ofjurisdiction.
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`Whenthe United States first brought this action testing whether the Permit fit within
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`Congress’ waiver of sovereign immunity in RCRA,it asserted jurisdiction was propervia both
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`28 U.S.C. § 1331 (federal question) and § 1345 (United States as plaintiff). (Doc. 1) at 75. As
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`this Court reasonedat the motion to dismiss stage, see (Doc. 26),
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`that claim presented a valid
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`federal question which wasappropriately adjudicated by this Court. E.g., United States v. State
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`ofN.M,, No. CIV. 90-276 SC, 1992 WL 437983, at *1 (D.N.M. Aug. 13, 1992), aff'd, 32 F.3d
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`494 (10th Cir. 1994) (federal court determining that New Mexico hazardous waste permit issued
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`to Los Alamos National Laboratory did not exceed waiver of immunity).
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`In its now-operative Amended Complaint, however,the United States challenges the
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`Permit in a second way—oneavailable to any permit holder—by attackingits validity under the
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`HWAitself. The UnitedStates still asserts jurisdiction is proper based on both federal question
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`jurisdiction and because the Governmentis the plaintiff. (Doc. 56) at { 4.
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`The Court, however, concludes that the Amended Complaintinsufficiently supports
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`federal question jurisdiction. “A case arises under federal law if its well-pleaded complaint
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`establishes either that federal law creates the cause ofaction or that the plaintiff's right to relief
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`necessarily dependsonresolution of a substantial question offederal law.” Nicodemus v. Union
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`Pac. Corp., 440 F.3d 1227, 1232 (10th Cir. 2006) (internal quotations omitted). The Amended
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`Complaintreferences RCRA,butit does notassert the cause ofaction is authorized by RCRA.
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`Nordoesit raise sovereign immunity. Instead, the claim is presented as a state administrative
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`appeal basedon violations ofa state statute. (Doc. 56) at ff 12-17, 26-31. Without the
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`allegation that the Permit exceeds the wavierof sovereign immunity, the Amended Complaint
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`does not present a federal question.
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`That leaves the United States to invoke this Court’s jurisdiction as the plaintiff. That
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`route to attaining jurisdiction, however, is constrained: “Except as otherwise provided by Act of
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`Congress, the district courts shall have original jurisdiction ofall civil actions, suits or
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`proceedings commencedbythe United States, or by any agencyor officer thereof expressly
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`authorized to sue by Act of Congress.” 28 U.S.C. § 1345.
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`The Court concludes that Congress’ general and qualified grant ofjurisdiction in 28
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`U.S.C. § 1345 must give way to Congress’ specific and unqualified waiver of sovereign
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`immunity subjecting federal facilities to authorized state hazardous waste permitting schemes.
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`Indeed, in Trapp, the Tenth Circuit considered how thedistrict courts’ lack ofjurisdiction
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`over state administrative appeals conflicted with the affirmative presence of another form of
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`jurisdiction—diversity—and found diversity could not overcome the defect. Trapp v. Goetz, 373
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`F.2d 380, 383 (10th Cir. 1966) (“[T]he presenceofdiversity of citizenship and of the requisite
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`amountin controversy is not alwayssufficient to provide jurisdiction to a United States District
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`Court where the proceedings originate in the administrative or judicial acts of a state.”).
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`For these reasons, the Court determines that the United States being the plaintiff in this
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`action is insufficient to overcomeits lack ofjurisdiction over a state administrative appeal with
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`exclusive jurisdiction in the state court.
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`4. Colorado River Counsels Abstention
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`The Colorado River abstention doctrine also bears on this case. Colorado River Water
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`Conservation Dist. v. United States, 424 U.S. 800 (1976). As brief background, the Court earlier
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`determined Colorado River abstention was inappropriate in part because“the issue in this case
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`will involve consideration offederal law in interpreting the contours of RCRA’s waiver of
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`sovereign immunity.” (Doc. 26) at 15. Because the United States omitted sovereign immunity
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`from its Amended Complaint, Colorado River abstention must now be reconsidered. The Court
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`concludesthat even if the HWA doesnotdivest this Court of subject matter jurisdiction outright,
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`whichit does for the reasons described above, Colorado River counsels abstention in deference
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`to the parallel state proceeding already before the New Mexico Court of Appeals.
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`The Colorado River abstention doctrineis a sort of catch-all doctrine which “falls within
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`none of the abstention categories” and whichis triggered “in situations involving the
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`contemporaneousexercise of concurrentjurisdictions...by state and federal courts.” Colorado
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`River, 424 U.S.at 817. The “avoidance of duplicativelitigation...is at the core of the Colorado
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`River doctrine.” D.A. Osguthorpe Fam. P'ship v. ASC Utah, Inc., 705 F.3d 1223, 1233 (10th Cir.
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`2013). The doctrine “concernsitself with efficiency and economy.” Jd. Thoughdeclining to
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`exercise jurisdiction based onaparallel state case is appropriate only in “exceptional”
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`circumstances, the Supreme Court has advised that such circumstances nevertheless exist “for
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`reasons ofwise judicial administration.” Colorado River, 42 U.S. at 818.
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`The Supreme Court hasset forth several factors to consider in determining whether
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`“exceptional circumstances”exist. /d. at 818. Before examining these factors, however, a
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`federal court “must first determine whetherthe state and federal proceedings are parallel.” Fox
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`v. Maulding, 16 F.3d 1079, 1081 (10th Cir. 1994). “Suits are parallel if substantially the same
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`parties litigate substantially the same issues in different forums.” Jd.
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`Suchis the case here: the
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`claims before the New Mexico Court of Appeals andthis Court appear nearly identical.
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`Compare Docketing Statement in United States v. N.M. Env’t Dep’t, Case No. A-1-CA-37887
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`(N.M.Ct. App., filed Apr. 12, 2019) with (Doc. 56).
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`Moving onto the factors, the Supreme Court has identified four to consider: “(1) whether
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`the state or federal court first assumed jurisdiction over the same [property]; (2) the
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`inconvenience ofthe federal forum; (3) the desirability of avoiding piecemeallitigation; and (4)
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`the order in which jurisdiction was obtained by the concurrent forums.” D.A. Osguthorpe Fam.,
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`705 F.3d at 1234 (citing Colorado River, 42 U.S. at 818). The Supreme Court has further
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`explained that the ColoradoRiver factors are not a “mechanical checklist,” but rather that
`“careful balancing”is required and “[t]he weight to be given to any one factor may vary greatly
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`from case to case.” Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 16
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`(1983).
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`Case 2:19-cv-00046-KG-SMV Document 70 Filed 08/18/22 Page 14 of 19
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`Case 2:19-cv-00046-KG-SMV Document 70 Filed 08/18/22 Page 14 of 19
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`To begin, this Court finds that the first of the Colorado River factors does not apply to
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`this case. Neitherthe state nor federal court has acquired jurisdiction over property in this
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`litigation. The Court also finds the secondfactor, the relative inconvenience ofthe federal
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`forum, deserveslittle weight. The New Mexico Court of Appeals usually, but not always, sits in
`Albuquerque, while this Court is in Las Cruces but may also hear cases in Albuquerque. Either
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`way, both courts are distant from Cannon AFB andneither party has suggested any physicalor
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`logistical inconvenience in either forum. Thelast factor, the order ofjurisdiction, also weighs
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`little on the decision. Concurrent jurisdiction was obtained on the same day;neither court waded
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`deep into litigation before the other.
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`The third factor, however,tips the scales strongly in favor of abstention. The Tenth
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`Circuit has emphasized that the “paramountconsideration in Colorado River was the third factor:
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`the dangerof piecemeallitigation.” D.A. Osguthorpe, 705 F.3d at 1234 (citing Moses H.
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`Cone, 460 U.S.at 19). The Supreme Court added two additional factors for consideration which
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`supplementthis Court’s analysis: whether“federal law provides the rule of decision on the
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`merits,” Moses H. Cone, 460 U.S.at 23, and whether the state-court proceedings adequately
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`protectthelitigants' rights, id. at 26-27. All three of these factors combinedlead this Court to
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`the conclusion, born of “wise judicial administration,”that it should defer to the state court.
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`Because thecurrentstate action is stayed, there is not an immediate risk of piecemeal
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`litigation, but the threat looms on the horizon. Federal law does not provide the rule of decision
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`in this case. Instead, the state’s statutory standard of review applies—thatis, whether the permit
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`terms are (1) arbitrary, capricious, or an abuse ofdiscretion; (2) not supported by substantial
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`evidencein the record; or (3) otherwise not in accordance with law. NMSA § 74-4-14(C).
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`Thosedefinitions are further construed and explained in state common law. E.g., Garcia v. New
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`Case 2:19-cv-00046-KG-SMV Document 70 Filed 08/18/22 Page 15 of 19
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`Case 2:19-cv-00046-KG-SMV ‘Document 70 Filed 08/18/22 Page 15 of 19
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`Mexico Hum. Servs. Dep't, 1979-NMCA-071, § 6 (adopting, from Wisconsin Supreme Court,
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`standard that arbitrary and capricious action by an administrative agency is evident “when it can
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`be said that such action is unreasonable or doesnot havea rational basis.”), rev'd on other
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`grounds, 1980-NMSC-025, § 6. Similarly, one of the State’s defenses is that the claims were not
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`properly preserved in the administrative record, which is another question requiring application
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`of state rules and commonlaw. Federal courts can, of course, apply state common law,but
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`withoutfurther consideration, this Court does not know if those issuesare clear, will necessitate
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`reasoned guesses, or may even require certification to the state courts. See Erie R. Co.v.
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`Tompkins, 304 U.S. 64 (1938). This is where the piecemeallitigation concern begins.
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`That concern is only amplified when considering the impact on future cases. Over the
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`long run,if the United States is allowed to avoid the state procedure by invoking federal
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`jurisdiction any time any federalfacility in the state seeks to challenge a permit, there is a risk of
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`developing a body of commonlaw atthe state which appliesto all permit holders except the
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`United States, and potentially divergent or conflicting precedents in federal court which apply
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`distinctively to the United States. Thus, the Court concludesthatin this unique situation—a
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`state-law issue analyzed understate-law standards and regarding which Congresshas expressly
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`waived sovereign immunity—it is wise that the state courts adjudicate the issue and develop the
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`law on point.
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`The Court concludesit is divested of subject matter jurisdiction by RCRA and the HWA,
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`but evenifit is not, it ought to wisely abstain and defer to the New Mexico Court of Appeals.
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`B. Sovereign Immunity Does Not Protect the United Statesfrom the HWA Appellate
`Process andits Rules
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`Despite the aboveanalysis, there is one narrow federal question presented in the motions
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`Case 2:19-cv-00046-KG-SMV Document 70 Filed 08/18/22 Page 16 of 19
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`claims are barred by a failure to preserve them during the administrative process below. (Doc.
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`59) at 6-10. The United States counters that the preservation requirementis inappropriately
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`applied to the Governmentbecause of sovereign immunity. (Doc. 60) at 10-14.
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`This Court does not determine whether the United States’ claims are waived for failure to
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`preserve. That is properly left to the New Mexico Court of Appeals. Instead, this Court rules on
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`the narrow question whether the federal governmentis immunized from preservation
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`requirementin the first place. The Court determinesthatit is not. Before addressing the United
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`States’ specific arguments,the Court addresses sovereign immunity generally.
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`Ordinarily, sovereign immunity is a shield which protects the United States from suits
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`whenit is a defendant. United States v. Mitchell, 445 U.S. 535, 538 (1980)(“It is elementary
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`that the United States, as sovereign, is immune from suit save as it consents to be
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`sued].]”) (citing United States v. Sherwood, 312 U.S. 584, 5