Esther Lee BEGAY, surviving wife of John Lee, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Harvey Lee Begay and his wife, Mamie Begay; Herbert N. Begay and his wife, Ella Begay; Hosteen Alsissze Begay and his wife, Jane Doe Begay; John N. Begay and his wife, Mable Lee Begay; Kee H. Begay and his wife, Elise Begay; Roy Bekis and his wife, Annabella Bekis; Bernard D. Benally and his wife, Jeanette Benally; Billy Benally and his wife, Lucille Benally; Dan T. Benally and his wife, Jane Doe Benally; Harry Lee Benally and his wife, Minnie Benally; Henry J. Benally and his wife, Nancy Benally; John Benally and his wife, Nellie G. Benally; Lucy W. Benally, surviving wife of Roy Benally, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Nellie Benally, surviving wife of Harrison Benally, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Rose T. Benally, surviving wife of Todacheene Benally, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Bruce Billy and his wife, Elizabeth Billy; Thomas Blackhorse, Sr. and his wife, Grace Blackhorse; Alice Blackwater, surviving wife of Frank Blackwater, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Ruth Charley, surviving wife of Joe Charley, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; George Tangle Chee and his wife, Jane Doe Chee; Asa Cody and his wife, Jennie Cody; Lucy Coleman, surviving wife of Joe Coleman, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Lucy Coty, surviving wife of Lee C. Coty, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Fannie Dick, surviving wife of Clark Dick, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Clarence Frank and his wife, Minnie Frank; Agatha Garnenez, surviving wife of Jim Tom Garnenez, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; James N. Garnenez, aka James Jim, and his wife, Jane Doe Garnenez; Bessie George, surviving wife of King George, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Jessie Harrison, surviving wife of Phillip Harrison, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Manson Harvey and his wife, Mary Louise Harvey; Fern Hosteen, surviving wife of Harry Hosteen, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Ray Hosteen and his wife, Lula Hosteen; Fred Jim and his wife, Rita Rose Jim; Grey Jim and his wife, Lena Jim; Marie Joe, surviving wife of Dee Joe, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Raymond S. Joe and his wife, Dorothy Mae Joe; Mae N. John, surviving wife of Tom W. John, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Frank John and his wife, Evelyn John; Harry W. Johnson and his wife, Jane Doe Johnson; Mary Jane Johnson, surviving wife of Fred E. Johnson, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Mary Louise Johnson, surviving wife of Billy Johnson, deceased, Individually and in her representative capacity *1318 for and on behalf of the surviving children and parent or parents of the deceased; Roscoe Kinsel and his wife, Elizabeth Kinsel; Allen Lee and his wife, Lilly Lee; Tom A. Lee, Sr. and his wife, Alice S. Lee; Wilbert Mark and his wife, Jane Doe Mark; Sam Marshall, Sr. and his wife, Jane Doe Marshall; Frank Nacheenebetah and his wife, Jane Doe Nacheenebetah; Bernard Nakai and his wife, Louise Nakai; Joe Lee Nakai and his wife, Jane Doe Nakai; Leroy L. Nakai and his wife, Esther Mae Nakai; Pearl Nakai, surviving wife of John Smith Nakai, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Paul Nakaidinae and his wife, Louise Nakaidinae; Annie Mae Nelson, surviving wife of Alfred Nelson, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Kenneth Nez and his wife, Jane Doe Nez; Louis K. Nez and his wife, Jane Doe Nez; Mary Jane Nez, surviving wife of Keedah Hosteen Nez, aka Keedah Hosteen Nez Begay, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Donald Roe and his wife, Corena Roe; Harry Russell and his wife, Jane Doe Russell; Harry Smith, Jr. and his wife, Jane Doe Smith; James Smith and his wife, Jane Doe Smith; Bessie Sorrelhorse, surviving wife of Tony Sorrelhorse, Jr., deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Elsie J. Tapaha, surviving wife of John Tapaha, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Joe Tom Tapaha and his wife, Susie Tapaha; Carl Thomas and his wife, Alberta Thomas; Frank Tsosie and his wife, Lola Tsosie; George Tutt, Sr. and his wife, Bessie H. Tutt; King Tutt and his wife, Jane Doe Tutt; Jane Washburn, surviving wife of John Washburn, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Betty Joe Yazzie, surviving wife of Kee Yazzie, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Betty Joe Yazzie, surviving wife of Robert Yazzie, deceased, individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Delores Yazzie, surviving wife of Peter Fred Yazzie, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Fannie Yazzie, surviving wife of Clifford Yazzie, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased; Hanagran Yazzie and his wife, Amy Yazzie; James H. Yazzie and his wife, Jane Doe Yazzie; Kelewood Yazzie and his wife, Stella Mae Yazzie; Mary Ann Yazzie, surviving wife of Selow Yazzie, deceased, Individually and in her representative capacity for and on behalf of the surviving children and parent or parents of the deceased, Plaintiffs,
v.
The KERR-McGEE CORPORATION; Kerr McGee Oil Industries, Inc.; Vanadium Corporation of America; Foote Mineral Co.; Amax, Inc.; Climax Uranium Company; and Climax Molybdenum Company, Defendants.
United States District Court, D. Arizona.
*1319 William P. Mahoney, Jr. and Frank J. Barry, Tucson, Ariz., of Mahoney & Rood, *1320 Stewart L. Udall, Phoenix, Ariz., for plaintiffs.
Steven C. Lester, of Jennings, Strouss & Salmon, Ralph Mahowald, of O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, et al., Robert K. Park, John R. Greer, Phoenix, Ariz., for defendants Kerr-McGee Corp. and Kerr-McGee Oil Industries, Inc.
Newman R. Porter, Alvin H. Shrago, of Evans, Kitchel & Jenckes, Phoenix, Ariz., for Amax, Inc., Climax Uranium Co. and Climax Molybdenum Co.
Douglas L. Irish, of Lewis & Roca, Phoenix, Ariz., for Foote Mineral Co. and Vanadium Corp. of America.
James P. Linn, Raymond E. Tompkins, William R. Burkett, B. J. Zimmerman, Richard F. Campbell, Oklahoma City, Okl., for Kerr-McGee Corp.
Rosemary Collyer, Raymond J. Turner, of Dawson, Nagel, Sherman & Howard, Denver, Colo., for Foote Mineral Co. and its related parties defendant.
MEMORANDUM AND ORDER
COPPLE, District Judge.
In their fourth amended complaint, plaintiffs seek to invoke this court's jurisdiction on the basis of both diversity of citizenship and federal question. Between 1948 and 1966, plaintiffs, and plaintiffs' decedents, all Navajo Indians, were employed at the defendants' uranium mining operations located on the Navajo Indian Reservation. During this time period, these uranium workers are alleged to have been exposed to radon and "radon daughter" products. This exposure is alleged to have caused the plaintiffs and plaintiffs' decedents to suffer lung cancer and other radiation-related illnesses. Plaintiffs seek damages under the theories of negligence, strict liability, and intentional tort.
Defendants have moved to dismiss this complaint on the basis that this court lacks subject matter jurisdiction and the complaint fails to state a claim.
In their memoranda, the parties have raised issues regarding the existence of a federal question, the applicability of Arizona's Occupational Disease Disability Act (ODDA) and Workmen's Compensation Laws to Indian reservations, and several exceptions to the exclusive remedies afforded under these two statutory schemes.
As will become evident, this Court is being called upon to interpret the language and underlying policy of ODDA. Although this Court is of the opinion that the state courts of Arizona are better equipped to determine these issues, this Court may not dismiss this case under the abstention doctrine.
Since a constitutional issue is not present, the doctrine of Railroad Comm'n v. Pullman Co.,
Nevertheless, in this case this Court must determine the applicability of the abstention doctrine in light of the grant of diversity jurisdiction. A court may not abstain merely because the applicable state law is uncertain or difficult to determine. Meredith v. Winter Haven,
The Ninth Circuit has been careful to avoid extending Burford. See International Brotherhood of Electrical Workers v. *1321 Public Service Comm'n,
Secondly, the Ninth Circuit explained that Burford -type abstention is inappropriate in cases in which federal issues can easily be separated from state law issues. Id. at 211. In this case, the issue of whether ODDA may be applied upon an Indian reservation may be easily separated from the state law issues of whether the exceptions to ODDA's otherwise exclusive remedy are applicable. Finally, the IBEW court indicated that this type of abstention is inappropriate where the state has not limited the determination of the issue to a particular court. Id. Thus, abstention might be appropriate where challenges to a state regulatory commission orders are concentrated in a specialized court. No particular court is deemed especially competent to construe the substantive provisions of the Workmen's Compensation Law or ODDA.
In the only case this Court could find that fully confronted the Burford doctrine in the context of interpreting and applying local workmen's compensation laws, the First Circuit held the doctrine inapplicable to issues regarding the extent of the act's coverage. Construction Aggregates Corp. v. Rivera de Vicenty,
Federal Question Jurisdiction
Plaintiffs argue that this Court has jurisdiction under 28 U.S.C. § 1331. First, under the authority of Oneida Indian Nation v. County of Oneida,
In Oneida, the Oneida tribe maintained what was essentially a possessory action, asserting a current right to possession conferred by federal law.
The rationale of Oneida has been extended to include actions brought by Indian tribes for trespass, Mescalero Apache Tribe v. Burgett Floral Co.,
*1322 In contrast, the plaintiffs in this case bring their action as individuals seeking damages for personal injury. The only link to the Oneida rationale is that the allegedly tortious conduct occurred on an Indian reservation. The tribe's possessory rights are in no way involved. Where tribal possessory rights are not involved, the courts have refused to extend the rationale of Oneida to hold that a federal question is present. See Gila River Indian Community v. Henningdon, Durham & Richardson,
Plaintiffs' contention that the test espoused in Williams v. Lee operates to vest this Court with jurisdiction to determine the merits of a tort action is more difficult to unwind. Plaintiffs' argument is that the Williams test precludes Arizona from applying its workmen's compensation laws to employment-related disabilities suffered by Indians arising out of their employment on the reservation. Just how this reasoning leads to the conclusion that this Court has jurisdiction to determine the merits of a tort action is never explained. The Court, however, will not hazard a guess for it is clear that the plaintiffs' claim does not arise under federal law.
A case "arises under" federal law only if a right created by federal law is an essential element of the cause of action. Phillips Petroleum Co. v. Texaco, Inc.,
Moreover, plaintiffs' argument misapplies the infringement test espoused in Williams and its progeny. The cases relied upon by plaintiffs, Williams v. Lee, supra, McClanahan v. State Tax Comm'n,
Thus, the Williams test might apply in a suit by an employee seeking to apply state workmen's compensation laws against an Indian employer for injuries that arise out of employment on the reservation. In contrast, as to the plaintiffs in this case, state law operates merely to limit the remedies available under state law. The plaintiffs are seeking the benefit of state tort *1323 law, but Arizona restricts the availability of tort remedies where the plaintiff-employee suffers an employment-related injury or disability. This is the substance of plaintiffs' argument. They seek the benefit of state tort law, but do not want to be subject to the limitations imposed by workmen's compensation laws. There is no infringement upon the authority of an Indian tribe to govern Indian affairs where an Indian plaintiff opts for the protection of state law because he cannot obtain the relief he desires within his tribe's institutions.[1]See Williams v. Lee,
Finally, and perhaps most importantly, there is a federal statute, 40 U.S.C. § 290, that permits states to apply their workmen's compensation laws upon Indian reservations. Johnson v. Kerr-McGee Oil Industries, Inc., CIV-79-331-TUC-MAR (D.Ariz. 1980). Judge Richey's orders of August 21 and May 19, 1980 adequately dispose of this issue.
Diversity Jurisdiction
As explained in its memorandum and order of May 13, 1980, this Court lacks subject matter jurisdiction to hear the plaintiffs' claims if an Arizona court would be deprived of subject matter jurisdiction. With certain exceptions discussed below, Arizona's workmen's disability laws operate to deprive its courts of jurisdiction to adjudicate claims covered by the applicable statutory scheme. If the plaintiffs are unable to fit themselves within the statutory exceptions, their sole remedy lies before the Arizona Industrial Commission.
From 1943 until 1973, there existed the Workmen's Compensation Law, Ariz.Rev. Stat.Ann. §§ 23-901 through -1091, and the separate and distinct Occupational Disease Disability Act, §§ 23-1101 through -1270. In 1973, these two statutory schemes were merged. Ariz.Rev.Stat.Ann. §§ 23-901 through -1081 (Supp.1979). Coverage under these acts was exclusive. If a claimant's disability was compensable under ODDA, he was excluded from coverage under the Workmen's Compensation Law. Featherman v. Industrial Comm'n,
These two statutory systems were distinguishable regarding several issues involved in this lawsuit:
(1) whereas the Workmen's Compensation Law contained a wilful misconduct exception to the act's exclusive remedy, § 23-1022, the only exception under ODDA was where the employee successfully rejected that act's provisions, § 23-1222;
(2) whereas the Workmen's Compensation Law required notices to be published in all languages spoken by the employees, § 23-906(E), ODDA required notices to be published only in those languages, including English, designated by the Industrial Commission, § 23-1108;
(3) under the Workmen's Compensation Law, only the employee, and not his dependents, could make the election under § 23-906(E) if the employee were injured during the period in which proper notice had not been effected, Jackson v. Northland Construction Co.,
To complicate things further, ODDA was amended in 1969 to include within its coverage of radiation illness, diseases and "pathological changes" arising out of exposure to "ionizing radiation". § 23-1102(12) (1971). Prior to 1969, this section covered "ulceration of the skin or destruction of tissue due to the prolonged exposure to roentgen rays or radium emanations."
*1324 Finally, in 1973, the two statutory systems were combined. Occupational diseases are now subject to the notice and election provisions that formerly applied only to the Workmen's Compensation Law. Nevertheless, the willful misconduct exception is not applicable to occupational diseases. § 23-901(9)(b).
Plaintiffs contend that there is no coverage under ODDA because the kind of radiation illness suffered by the plaintiffs and plaintiffs' decedents was not recognized as an occupational disease until 1969. The plaintiffs and plaintiffs' decedents were exposed to "radiation from radon and radon products" during a period (1948-66) when only "exposure to roentgen rays or radium emanations" was explicitly covered. The plaintiffs interpret the 1969 amendment as indicating a significant change in substantive legal rights. Since Arizona forbids the retroactive application of statutes unless the legislature expressly declares to the contrary and since the rights of workers are fixed by the laws in existence at the time when they perform their actual work, the plaintiffs are not covered by ODDA as it stood between 1948 and 1966.
In contending that ODDA does cover the plaintiffs' alleged disabilities, the defendants differ sharply in their reasoning.
Kerr-McGee argues that the crucial time in determining whether there is coverage is not the time of exposure, but the time of disablement or death. The critical time is the date the claimant, in the exercise of reasonable diligence, discovers a relationship between a disabling condition and employment. Since the plaintiffs have pled only the dates of exposure and not the dates of disablement or death, there are no pleaded facts that would indicate that ODDA does not apply.
Defendant Foote Mineral would have this Court take judicial notice of the fact that "radium emanations" is a commonly understood term that encompasses "radon gas and radon daughters". Thus, Foote Mineral argues, the 1969 amendment was not necessary in order to bring the diseases of which plaintiffs complain within the substantive coverage of ODDA. In addition to the scientific literature quoted by Foote, it is to be noted that the literature submitted by the plaintiffs also supports this conclusion. "Uranium ores contain uranium plus all the other members of the radioactive family, of which uranium is the parent. Included in this list is radium, which is transformed into radon gas." Federal Security Agency, Health Study of the Uranium Mines and Mills 5 (Interim Rep.1952).
A reading of State Compensation Fund v. Joe,
In both Yazzie and Joe, the claimants were exposed to radiation emanating from uranium mines in which they worked. All exposure in Arizona was prior to 1969. In each case, there is a statement to the effect that ODDA must be applied as its provisions read at the time of death or disablement. Joe,
Defendant Foote Mineral argues that the date of disablement/death language in Yazzie and Joe relate only to the question of when a claim must be filed, but not to the substantive question of which diseases are covered. If Foote Mineral is correct, then Yazzie and Joe must have held that the uranium miners were covered by ODDA only because pre-1969 ODDA covered the exposure to radiation in uranium mines. If there was no ODDA coverage, then the *1325 courts in Yazzie and Joe explained that the Workmen's Compensation Law would have applied instead.
At this point, it is not necessary for this Court to determine which theory is correct. It suffices that Yazzie and Joe mandate that at least one is correct, either of which leads to the conclusion that the plaintiffs in this case are subject to the provisions of ODDA and not the Workmen's Compensation Law or state tort law.[2]
Finally, this Court will observe that the mere fact of an amendment itself does not indicate that the legislature intended to change a law or merely to interpret it. While an amendment to an unambiguous statute indicates an intention to change the law, no such intention is indicated where an ambiguous provision has been amended. 1A Sutherland, Statutory Interpretation § 22.30 (4th ed. 1972). Considering the scientific literature alluded to earlier indicating that radon gas and its decay products are encompassed by the term "radium emanations", it certainly cannot be said that the statute's pre-1969 language was unambiguous. Furthermore, workmen's compensation laws are to be interpreted liberally. Sutherland, supra at § 71.06. These statutes should be construed in a manner which will best effect the purpose of seeing that the disabled worker is reasonably compensated. Ossic v. Verde Central Mines,
As this Court has concluded that the plaintiffs' claims are covered by ODDA, the remaining issues may be disposed of without extensive discussion. As explained above, there is no wilful misconduct exception under ODDA as it existed until 1973, or thereafter as incorporated in the Workmen's Compensation Law. ODDA provided the exclusive remedy except where the employee, or his dependents if death occurred, rejects the provisions. Ariz.Rev.Stat.Ann. § 23-1222, -1223 (1971); § 23-901(9)(b) (Supp.1979).
As for the defendants' alleged failure to comply with statutory notice requirements, the plaintiffs' complaint is deficient in that it alleges a failure to comply with the Workmen's Compensation Law rather than ODDA. Fourth Amended Complaint ¶ V. As indicated above, the plaintiffs are covered by ODDA and not the Workmen's Compensation Law. Thus, any tort action based upon a right to reject ODDA's provisions must allege a failure to comply with that act's notice requirements. The requirements of the Workmen's Compensation Law are irrelevant.
IT IS HEREBY ORDERED:
The complaint is dismissed, except that leave is granted to plaintiffs to file a Fifth Amended Complaint alleging only a failure to comply with the notice requirements of ODDA if appropriate.
NOTES
Notes
[1] The reasoning in Williams might lead to the conclusion that the Navajo tribe could develop its own workmen's compensation laws that could displace the Arizona system on the reservation. See Canby, Civil Jurisdiction and the Indian Reservation, 1973 Utah L.Rev. 206, 223-27. The tribe, however, has not seen fit to do so. See Navajo Tribal Code §§ 7-204(c); 7-252; 15-1 through -802 (1977).
[2] Even if plaintiffs are correct in contending that pre-1969 ODDA did not cover the diseases suffered by plaintiffs and plaintiffs' decedents, then they would be left not with a tort action, but with a claim under the Workmen's Compensation Law. Under Arizona law, a disease not covered by ODDA is apparently recognized as a compensable injury under the Workmen's Compensation Law. Compare Featherman v. Industrial Comm'n,