42 U.S.C.A. §§ 6971(b), 6903(15); 42 U.S.C.A. §§ 7622(b)(1), 7602(e) (OLC letter attached).
The Assistant Secretary of Labor for the Occupational Safety and Health Administration (OSHA), argues in his amicus brief that OLC's reasoning compels the conclusion that Congress abrogated Indian tribal immunity from whistleblower suits under the Clean Water Act. Congress expressed that intention by (1) permitting an aggrieved employee to file a complaint against any "person," 33 U.S.C.A. § 1367(a), and (2) defining the term "person" in the statute's general definitions sections to include "municipalities," id. at § 1362(5), which in turn, includes "an Indian tribe or an authorized Indian tribal organization, id. at § 1362(4)." Amicus Br. at 6-10.
We agree that the framework OLC applied to whistleblower claims against the federal government under the SWDA and the CAA must be applied to whistleblower claims against sovereign tribes under the Clean Water Act. Under this analysis, we conclude that Congress abrogated tribal immunity from whistleblower suits under the Clean Water Act.
The Band argues that an abrogation analysis that focuses only on the text of the whistleblower provision and the general definitions provision is too narrow. It fails to account for the fact that Congress used much more explicit language elsewhere in the Clean Water Act to address tribal sovereignty, viz., the Administrator is "authorized to treat an Indian tribe as a State" for enumerated purposes, which do not include the whistleblower provision. 33 U.S.C.A. § 1377(e) (West 2001). From this, the Band argues that "[a]n elementary principle of statutory construction is that a section of a statute dealing with a specific topic (in this case, the sovereign immunity of tribes) governs or takes precedence over an interpretation based on a general provision of the statute (such as the definitional provisions in § 1362(4) and (5)[)]." Band Br. at 7.
The difficulty with this argument is that both the Clean Air Act and the Solid Waste Disposal Act include provisions that waive federal sovereign immunity with language much more explicit than the whistleblower text. 42 U.S.C.A. § 7418(a) (West 2003) (CAA) ("Each department, agency, and instrumentality of the executive, legislative, and judicial branches, of the Federal Government . . . shall be subject to, and comply with, all Federal . . . requirements, administrative authority, and process and sanctions respecting the control and abatement of air pollution in the same manner, and to the same extent as any nongovernmental entity"). 42 U.S.C.A. § 6961(a) (West 2003) (SWDA) (same). These provisions would support the same argument the Band makes under the Clean Water Act – that the contrast between text concerning federal
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compliance responsibilities and text concerning whistleblower liability shows that Congress drafted differently when it wanted to eliminate sovereign immunity than when it did not. In other words, the textual differences bespeak a difference in intent. But OLC's analysis did not treat the more explicit waivers in the CAA and SWDA as evidence of what Congress did not intend in the whistleblower provisions. Nowhere in its argument does the Band suggest any reason why the OLC analysis would look upon the explicit abrogations in the Clean Water Act differently.
The Band asserts that we should disregard the OLC opinion. "While opinions by the OLC may provide guidance for executive branch agencies, the Board here is performing an adjudicative function, and is not bound by an opinion." Band Reply Br. at 3. However, the Band offers no authority for its argument and makes no response to the authorities cited by amicus in support of the proposition that OLC opinions bind the Secretary of Labor and, in turn, the Board. Amicus Br. at 9 n.6. Thus, we have no basis for deviating from our conclusion in Erickson that we are bound by the OLC opinion. Erickson, slip op. at 10-12. Accordingly, we reject the Band's assertion of sovereign immunity from suit under § 1367 of the Clean Water Act.
2. Tribal immunity based on purely intramural governance does not apply
The Band also argued that it was immune from suit under subsection 1367 because Kanj's duties were inherently governmental, and the Ninth Circuit has held that federal statutes of general applicability that are silent about coverage of Indian tribes, will not apply to tribes if they concern "exclusive rights of self-governance in purely intramural matters." See EEOC v. Karuk Tribe Hous. Auth., 260 F.3d 1071, 1078-80 (9th Cir. 2001) (following Donovan v. Coeur d'Alene Tribal Farm, 751 F.2d 1113 (9th Cir. 1985). Band Opening Br. at 11.
The ALJ rejected this argument because the Clean Water Act is not silent about coverage of Indian tribes. Congress specifically referred to Indian tribes twice. The whistleblower provision applies to "any person in violation of paragraph (1)" – the prohibition on discriminating against employees because they raise environmental safety concerns. Id. § 300j-9(i)(2)(A). The general definitions section of the Act defines the term "person" to include municipalities, which in turn includes "Indian tribes." 42 U.S.C.A. § 300f(12) and (11). And § 1377(e) authorizes EPA "to treat an Indian Tribe as a state" under certain circumstances. See Kanj v. Viejas Band, ALJ No. 2006-WPC-01 (ALJ Dec. 19, 2005) (order denying Respondent's motion for summary decision).
Additionally, as the ALJ pointed out, the parties are in disagreement on whether Kanj's duties are purely intramural. Thus, he concluded, "even if the statute were construed as one of general applicability, based on this dispute of fact summary judgment is inappropriate." Id. We concur.
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CONCLUSION
Accordingly, we hold that the ALJ did not err in denying the Tribe's motion for summary decision based on tribal sovereign immunity and we REMAND this case for further proceedings consistent with this opinion.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
DAVID G. DYE
Administrative Appeals Judge
[ENDNOTES]
1 33 U.S.C.A. § 1367 (West 2001).
2 The Secretary of Labor has delegated her authority to issue final administrative decisions in cases arising under the WPCA to the Administrative Review Board. Secretary's Order 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002). The Secretary's delegation of authority to the Board includes, "discretionary authority to review interlocutory rulings in exceptional circumstances, provided such review is not prohibited by statute." Id. at 64,273.
3 In Migliori, the First Circuit directly decided the question whether state sovereign immunity may be used to bar administrative adjudications like ours. As far as our research shows, no court has squarely confronted the question whether Indian sovereign immunity may be raised in our proceedings. See e.g., Osage Tribal Council v. U.S. Dep't of Labor, 187 F.3d 1174, 1180 (10th Cir. 1999)(court need not decide whether the Council could assert its immunity in the administrative proceeding, since court finds that "the SDWA has explicitly abrogated tribal immunity in any case"). And the Supreme Court has said that "the immunity possessed by Indian tribes is not coextensive with that of the States," and "there are reasons to doubt the wisdom of perpetuating the doctrine" of tribal immunity. Kiowa Tribe, 523 U.S. at 755, 758. However, inasmuch as we conclude that Congress did abrogate tribal immunity from suit for violations of the Clean Water Act's whistleblower provision, we need not decide the effect of the Migliore decision on these proceedings.
4 The OLC also considered the Clean Water Act and concluded that Congress did not waive federal sovereign immunity from suit under the whistleblower provision of that statute, 33 U.S.C.A. § 1323 (West 2001). Although the statute permits whistleblower claims against any "person," 33 U.S.C.A. § 1367(a), the statute's definition of "person" does not include the United States, id. § 1362(5).
