United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 9, 2010 Decided January 28, 2011

No. 10-5080

EL PASO NATURAL GAS COMPANY,

APPELLANT

v.

UNITED STATES OF AMERICA, ET AL.,

APPELLEES

Consolidated with 10-5090

Appeals from the United States District Court

for the District of Columbia

(No. 1:07-cv-00905)

Jerry Stouck argued the cause for appellant El Paso 

Natural Gas Company. David A. Taylor, pro hac vice, argued 

the cause for Navajo Nation. With them on the briefs were 

Robert Charrow, Maggie Sklar, Thomas L. Sansonetti, Troy 

A. Eid, William G. Myers III, Christopher J. Neumann, and 

Paul E. Frye.
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Michael T. Gray, Attorney, U.S. Department of Justice, 

argued the cause for appellees. With him on the brief was 

Robert H. Oakley, Attorney. Eric G. Hostetler, Attorney, and 

R. Craig Lawrence, Assistant U.S. Attorney, entered 

appearances.

Before: ROGERS and TATEL, Circuit Judges, and 

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: This case concerns two sites on 

Navajo tribal lands that the Navajo Nation alleges were 

contaminated by World War II and Cold War era uranium 

mining. Pursuant to the Uranium Mill Tailings Remediation 

and Control Act (UMTRCA), which created a mechanism to 

cleanup after such activities, the Navajo Nation asked the 

Department of Energy to remediate both sites. The 

department refused, and the district court declined to review 

that decision, relying on a provision of UMTRCA stating that 

“designations made, and priorities established, by the 

Secretary under this section shall be final and not subject to 

judicial review.” For the reasons set forth in this opinion, we 

affirm.

I.

In the 1930s and 40s, “the uranium milling industry was 

under the dominant control of the Federal Government. At 

that time, uranium was being produced under Federal 

contracts for the Government’s Manhattan Engineering 

District and Atomic Energy Commission program.” H.R. Rep. 

No. 95-1480, pt. 1, at 11 (1978). The uranium mining process 

results in copious amounts of radioactive waste in the form of 

uranium mill tailings, a sandy waste produced during ore 

milling (from which only one to five pounds of usable 
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uranium is extracted from every two thousand pounds of 

mined ore). Id. (noting that nearly ninety million tons of such 

waste “are attributable to Federally-induced production”).

Until “the early 1970’s[,] there was little official recognition 

of the hazards presented by these tailings.” Id. As a result,

“mill tailings were left at sites, mostly in the Southwest, in an 

unstable and unprotected condition,” creating a substantial 

threat to public health. Id.

In 1978, Congress passed UMTRCA, a comprehensive 

statute directing DOE, in cooperation with states and Native 

American tribes, to undertake remedial action of all sites 

contaminated by uranium “produced for sale to any Federal 

agency prior to January 1, 1971 under a contract with any 

Federal agency.” 42 U.S.C. § 7911(6)(A). UMTRCA gave the 

Secretary of Energy one year from November 8, 1978, the 

statute’s effective date, to “designate” uranium “processing 

sites” where remediation was required and to prioritize those 

sites. § 7912(a)(1), (a)(3)(b). Specifically, the statute required 

the Secretary to designate twenty-two listed sites, as well as 

any “other processing sites within the United States which he 

determine[d] require[d] remedial action to carry out the 

purposes of [UMTRCA].” § 7912(a)(1). UMTRCA defines 

“processing site” to include both the mill site itself and “any 

other real property or improvement thereon which—(i) is in 

the vicinity of such site, and (ii) is determined by the 

Secretary . . . to be contaminated with residual radioactive 

materials derived from such site.” § 7911(6).

As to “vicinity” sites—the subject of this litigation—

UMTRCA directs the Secretary to include such properties in 

the initial first year designation process but allows him to 

make additional inclusions after the one year deadline. In 

particular, section 7912(e) provides: 
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(1) The designation of processing sites within 

one year after November 8, 1978, under this section 

shall include, to the maximum extent practicable, 

[vicinity properties].

(2) Notwithstanding the one year limitation 

contained in this section, the Secretary may, after 

such one year period, include any [vicinity property] 

as part of a processing site designated under this 

section if he determines such inclusion to be 

appropriate to carry out the purposes of [UMTRCA].

§ 7912(e). Central to the issue before us, UMTRCA also 

contains a bar on judicial review. Section 7912(d) provides 

that “[t]he designations made, and priorities established, by 

the Secretary under this section shall be final and not subject 

to judicial review.” 

Two other statutory provisions are relevant to this case.

First, UMTRCA directs the Secretary to enter into 

cooperative agreements with Native American tribes 

regarding cleanup of designated processing sites on tribal 

lands. § 7915. It contains a parallel provision requiring 

agreements with states for sites not on tribal lands. § 7913.

Second, UMTRCA requires the Secretary to “encourage 

public participation and, where appropriate, [to] hold public 

hearings” in carrying out the Act. § 7921.

This case concerns one of the sites expressly listed in 

section 7912(a)(1)—the Tuba City, Arizona, uranium mill, 

which is located on Navajo Nation tribal lands. The Secretary 

designated this site in 1979, entered into a cooperative 

agreement with the Navajo Nation in 1985, and completed 

cleanup in 1990.
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In the early 2000s, the Navajo Nation discovered that two 

nearby properties, the Tuba City Landfill and the Highway 

160 Site, were also contaminated and alleged that the Tuba 

City Mill was the source of the contamination. In December 

2003, the Navajo Nation sent a letter to the Secretary 

explaining that the sites needed remediation and requesting a 

meeting. In April of the following year, the Secretary replied 

that DOE believed the sites had been contaminated by a 

source other than the Tuba City Mill and so failed to qualify 

for UMTRCA remediation. The Secretary nonetheless agreed 

to set up a meeting.

The Navajo Nation shared the Secretary’s letter with the 

El Paso Natural Gas Company, the successor in interest to the 

company that had run uranium mining operations at the Tuba 

City Mill. El Paso, concerned about its own possible liability 

for harms caused by unremediated sites, brought suit against 

DOE and several other federal agencies. Alleging, among 

other things, that DOE’s denial of the Navajo Nation’s request 

to include the two sites as vicinity properties was arbitrary 

and capricious, El Paso asked the district court to issue a 

judgment declaring that DOE had failed to adhere to its legal 

obligation and that the Department, not El Paso, is “legally 

liable for the remediation costs and damage to the 

environment resulting from residual radioactive material or 

other deleterious or hazardous substances that emanated . . . 

from the Mill.” Amended Compl. ¶ 102. As part of this claim, 

El Paso also alleged that DOE violated UMTRCA’s public 

participation requirement by failing to hold a public meeting 

before deciding that the Tuba City Landfill and the Highway 

160 Site did not qualify for UMTRCA remediation. Id. ¶ 100.

The district court dismissed the request for declaratory 

relief for want of subject matter jurisdiction, concluding that 

El Paso’s claim was covered by section 7912(d)’s bar on 
6

judicial review. El Paso Natural Gas Co. v. United States,

605 F. Supp. 2d 224, 225 (D.D.C. 2009). Relying on the fact 

that the definition of vicinity property is part of the definition 

of processing site, the court reasoned that the decision to 

“include” a vicinity property pursuant to section 7912(e)(2) is 

“nothing more than to designate the scope—or boundaries—

of the processing site.” Id. at 228. In addition, the court 

pointed out that section 7912(d), the jurisdiction-stripping 

provision, contains no temporal limits and appears to apply to 

all designations made pursuant to section 7912. Id. The 

district court then responded to El Paso’s argument that “even 

if DOE’s purported decision to not include the Properties as 

part of the Mill processing site was in fact a designation, it 

was a not a designation ‘made,’ but a designation ‘not made,’ 

and therefore § 7912(d) is inapplicable.” Id. at 229. The court 

rejected this argument on the ground that “designations made” 

include designations not made because “any decision to take 

an affirmative action necessarily is a decision to not take its 

inverse.” Id.

Although the district court indicated that section 7912(d) 

might not foreclose judicial review of El Paso’s public 

participation claim, the court nonetheless dismissed that claim 

for want of final agency action pursuant to the Administrative 

Procedure Act. 5 U.S.C. § 704 (authorizing review of “final 

agency action”). The court explained that DOE’s April letter 

did not qualify as final agency action because it merely 

“informed the Navajo Nation of DOE’s understanding of the 

relevant state of affairs” and agreed to set up a meeting. Id. at 

229 n.8.

The district court granted the Navajo Nation’s motion to 

intervene. El Paso now appeals, arguing that we have 

jurisdiction despite section 7912(d) and that the April letter 

constituted final agency action. Because, for the reasons 
7

explained below, we agree that the district court lacked 

jurisdiction, we have no need to reach the question of final 

agency action with regard to El Paso’s arbitrary and 

capricious claim. Trudeau v. FTC, 456 F.3d 178, 183–85

(D.C. Cir. 2006) (explaining that the APA’s final agency 

action requirement is non-jurisdictional). Nor need we reach 

that question with regard to El Paso’s public participation 

claim because, by asserting in its opening brief that this claim 

was inseverable from the arbitrary and capricious claim, the 

company forfeited any argument that the claim might fit 

within an exception to section 7912(d)’s bar on judicial 

review. Appellant’s Br. 52 n.6. Our review is de novo. Nat’l 

Air Traffic Controllers Ass’n v. Fed. Serv. Impasses Panel,

606 F.3d 780, 786 (D.C. Cir. 2010) (“We review de novo the 

district court’s grant of a motion to dismiss for lack of subject 

matter jurisdiction.” (internal quotation marks omitted)). 

II.

When considering whether a statute bars judicial review, 

“[w]e begin with the strong presumption that Congress 

intends judicial review of administrative action.” Bowen v. 

Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986).

This presumption applies even where, as here, the statute 

expressly prohibits judicial review—in other words, the 

presumption dictates that such provisions must be read 

narrowly. See Dart v. United States, 848 F.2d 217, 221 (D.C. 

Cir. 1988). The question before us, then, is whether section

7912(d), read in light of the statute’s structure and legislative 

history, overcomes the presumption and bars review of 

section 7912(e)(2) decisions to include additional vicinity 

property as part of a previously designated processing site.

Bowen, 476 U.S. at 673 (directing courts to look at both the 

statutory language and the legislative history to determine 

congressional intent with respect to availability of judicial 

review); Kucana v. Holder, 130 S.Ct. 827, 835–39 (2010) 
8

(directing courts to consider the statutory structure). This bar 

is relatively high. As the Supreme Court has explained, 

“where substantial doubt about the congressional intent exists, 

the general presumption favoring judicial review of 

administrative action is controlling.” Bowen, 476 U.S. at 672 

n.3 (internal quotation marks omitted). Thus, “[w]hen a 

statute is ‘reasonably susceptible to divergent interpretation, 

we adopt the reading that accords with traditional 

understandings and basic principles: that executive 

determinations generally are subject to judicial review.’ ”

Kucana, 130 S.Ct. at 839 (quoting Gutierrez de Martinez v. 

Lamagno, 515 U.S. 417, 434 (1995)).

El Paso argues that section 7912(d) precludes review 

only of designations made during the first year pursuant either 

to section 7912(a), requiring the Secretary to designate and 

prioritize mill sites, or to section 7912(e)(1), requiring the 

Secretary to attempt to identify vicinity property within that 

first year. The statute, El Paso argues, creates two separate 

programs. The first includes activities relating to the two 

sections just described and was designed to be completed 

quickly, as evidenced by the one-year limitation and the bar 

on judicial review. The second includes actions taken 

pursuant to section 7912(e)(2), which calls for “inclusion” of 

additional vicinity properties. This second program has no 

such time limit and, according to El Paso, no bar on judicial 

review.

As evidence for this division, El Paso points to three 

features of UMTRCA’s text. First, it notes the tense 

difference between sections 7912(e)(1) and (e)(2). According 

to subsection (e)(1), “designation of processing sites . . . shall 

include, to the maximum extent practicable, [vicinity 

properties.]” § 7912(e)(1) (emphasis added). Although this 

seems to indicate that inclusion is part and parcel of 
9

designation, subsection (e)(2) directs the Secretary to “include 

[vicinity property] as part of a processing site designated 

under” section 7912, suggesting, El Paso insists, that 

designation has been completed and that inclusion amounts to 

a new activity. § 7912(e)(2) (emphasis added). In this regard, 

El Paso emphasizes the canon that when Congress uses 

different tenses in different statutory provisions, those 

differences should be given effect. Second, El Paso observes 

that the Secretary’s authority to designate sites expired one 

year from UMTRCA’s effective date. Therefore, the company

argues, any action taken after that date may not be considered 

“designation.” Finally, El Paso points out that section 7912(d) 

refers to “designations made” together with “priorities 

established.” Since priorities were undoubtedly established 

only in the first year, the company urges us to read 

“designations made” as referring just to first-year activities.

El Paso’s reading ignores critical features of the statute.

To begin with, section 7911(6) defines “processing site” as 

both the mill site and the vicinity property. That a vicinity 

property is part of a processing site, that section 7912(e)(2) 

appears in section 7912, which is titled “processing site 

designations,” and that section 7912(d) refers to the entire 

section rather than to particular subsections, all suggest that 

Congress intended to create a single program, the entirety of 

which is unreviewable. In addition, we disagree that the 

difference in tenses carries the significance that El Paso 

suggests. Read together, subsections (e)(1) and (e)(2) 

establish a relationship between inclusion and designation—

the former being an element of the latter—and subsection 

(e)(2) establishes that although the Secretary was generally 

subject to a one year time limit, Congress carved out an 

exception for situations where designation of all qualified 

properties during that time frame would be impractical.
10

UMTRCA’s legislative history reinforces this 

interpretation. A House Committee report used the word 

“designation” to refer to the inclusion of vicinity properties 

under section 7912(e)(2): “the committee does recognize that 

designation of all structures and buildings ‘in the vicinity’ of a 

processing site may not be practicable within this timeframe 

and allows some flexibility. The committee expects the DOE 

to act expeditiously on these designations as well.” H.R. Rep. 

95-1480, pt. 2, at 36 (emphasis added). To be sure, as El Paso 

points out, the same passage notes that “[t]he Bill does not 

authorize designation or the establishment of priorities after 

the one year deadline.” Id. But El Paso takes the statement out 

of context. The sentence regarding vicinity properties 

immediately follows the sentence regarding the time limit, 

suggesting that Congress viewed subsection (e)(2) as an 

exception to the one-year rule rather than as a separate 

program.

On its face and in light of this legislative history, 

UMTRCA unambiguously created a single designation 

program that the Secretary was required to complete within 

one year except with regard to vicinity properties for which 

doing so would have been impractical. “Inclusion,” as 

evidenced by its use in both sections 7912(e)(1) and (e)(2), is 

a subcategory of “designation,” not a separate activity.

UMTRCA is thus not “reasonably susceptible to divergent 

interpretation.” Kucana, 130 S.Ct. at 839. The statute 

unambiguously provides that the decision to include a vicinity 

property as part of a designated processing site pursuant to 

subsection (e)(2) is a “designation[] made.” Accordingly, we 

hold that section 7912(d) overcomes the presumption of 

reviewability and bars judicial review of actions taken 

pursuant to subsection (e)(2) just as it does of actions taken in 

the first year pursuant to subsection (e)(1) and section 

7912(a).
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In the alternative, El Paso argues that even if section 

7912(d) precludes review of subsection (e)(2) decisions to 

include additional vicinity properties, the action in this case 

may nonetheless proceed because it involved a designation 

not made rather than a “designation made.” But we agree with 

the district court that this distinction is of no consequence.

“Designations made” must encompass all decisions regarding 

designation, as any other reading would eviscerate the bar on 

judicial review. Because El Paso has given us no reason why 

anyone would challenge a designation, which after all triggers 

substantial federal cost-sharing for remediation and imposes 

no liability on private parties beyond that which exists under 

other statutes, reading section 7912(d) to bar review only of 

affirmative designations would render the provision 

meaningless.

III.

Finally, we address two concerns raised at oral argument 

by counsel for the Navajo Nation. First, he urged us to 

employ the canon of statutory interpretation directing courts 

to liberally construe statutes in favor of Native Americans.

Recording of Oral Arg. at 15:48–16:10; Montana v. Blackfeet 

Tribe of Indians, 471 U.S. 759, 766 (1985). This canon, 

however, has force only where a statute is ambiguous, id.;

Muscogee (Creek) Nation v. Hodel, 851 F.2d 1439, 1444–45

(D.C. Cir. 1988), and as we have explained, section 7912(d), 

read in light of UMTRCA’s other provisions, is unambiguous.

In addition, even were section 7912(d) ambiguous, the 

presumption applies only to statutes “passed for the benefit of 

dependent Indian tribes.” Alaska Pac. Fisheries Co. v. United 

States, 248 U.S. 78, 89 (1918) (interpreting the scope of land 

included in a reservation created by congressional act); see 

also San Manuel Indian Bingo & Casino v. NLRB, 475 F.3d 

1306, 1312 (D.C. Cir. 2007) (noting that “[w]e have found no 

case in which the Supreme Court applied this principle of pro-
12

Indian construction when resolving the ambiguity in a statute 

of general application.”). Here, UMTRCA’s statement of 

purpose reveals that Congress passed the statute to protect 

public health in general rather than tribal health in particular.

See § 7901(b) (“The purposes of this chapter are to . . . 

minimize or eliminate radiation health hazards to the 

public[.]”).

Second, counsel pointed to the 1985 Cooperative 

Agreement, a contract between DOE and the Navajo Nation 

entered into pursuant to section 7915. Although the bulk of 

the agreement deals with the remediation process, one 

provision does direct DOE to “identify vicinity properties 

associated with the Tuba City site,” pursuant to section 

7912(e). According to counsel, this provision is independently 

enforceable and thus a separate basis for liability. But we are 

skeptical about this not only because the agreement 

establishes procedures for alternative dispute resolution that 

were not, as far as the record indicates, followed in this case, 

but also because allowing review of the decision pursuant to 

the statutory agreement would eviscerate section 7912(d)’s 

bar on judicial review of section 7912(e)(2) designations. In 

any event, we need not settle the issue because the amended 

complaint nowhere raises a claim based on the Cooperative 

Agreement. Rather, it alleges only direct violations of sections 

7912 and 7921. To be sure, El Paso now argues that DOE’s 

failure to comply with the agreement is “independently 

actionable under the APA as agency action unlawfully 

withheld or unreasonably delayed,” Appellant’s Br. 51–52,

but parties may not raise a claim for the first time on appeal, 

United States v. British Amer. Tobacco (Invs.) Ltd., 387 F.3d 

884, 888 (D.C. Cir. 2004). 
13

Because this action falls squarely within UMTRCA’s bar 

on judicial review, we affirm the district court’s dismissal of 

El Paso’s sections 7912 and 7921 claims.

So ordered.