City of Albuquerque v. Browner

Citation97 F.3d 415
Decision Date07 October 1996
Docket NumberNo. 93-2315,93-2315
Parties, 65 USLW 2244, 27 Envtl. L. Rep. 20,283 CITY OF ALBUQUERQUE, Plaintiff-Appellant, v. Carol BROWNER, or her successor as Administrator, United States Environmental Protection Agency, Defendant-Appellee, The Western Coalition of Arid States; Metropolitan Sewerage Agencies; New Mexico Municipal League, Inc.; New Mexico Environment Department; State of New Mexico; and Pueblo of Isleta, Amici Curiae.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Bruce S. Garber of Garber and Hallmark, P.C., Santa Fe, New Mexico (Cullen Hallmark of Garber and Hallmark, P.C., Santa Fe, New Mexico; Robert M. White, City Attorney; and Gregory P. Smith, Assistant City Attorney, City of Albuquerque, Albuquerque, New Mexico, with him on the briefs), for Plaintiff-Appellant.

Elizabeth A. Peterson, Attorney, Department of Justice, Washington, DC (Lois J. Schiffer, Assistant Attorney General, Department of Justice, Washington, DC; John J. Kelly, United States Attorney, and John W. Zavitz, Assistant United States Attorney, District of New Mexico, Albuquerque, New Mexico; Elizabeth M. Ahern and David C. Shilton, Attorneys, Department of Justice, Washington, DC; Randolph L. Hill, U.S. Environmental Protection Agency, Office of the General Counsel, Washington, DC, and Pat Rankin, U.S. Environmental Protection Agency, Office of Regional Counsel, Dallas, Texas, of counsel), with her, on the brief for Defendant-Appellee.

Jerome C. Muys of Will & Muys, P.C., Washington, DC, on the brief, for amicus curiae Western Coalition of Arid States.

Lee C. White, Washington, D, on the brief, for amicus curiae Metropolitan Sewerage Agencies.

Steven Barshov of Sive, Paget & Riesel, P.C., New York City; Richard L.C. Virtue and Stephany S. Wilson of Taichert, Wiggins, Virtue, Wilson & Najjar, Santa Fe, New Mexico, on the brief, for amicus curiae New Mexico Municipal League.

Tom Udall, Attorney General of New Mexico; Alletta Belin, Assistant Attorney General; and Tracy M. Hughes, Special Assistant Attorney General, New Mexico Environment Department, Santa Fe, New Mexico, on the brief, for amicus curiae New Mexico Environment Department and State of New Mexico.

L. Lamar Parrish of Ussery & Parrish, P.A., Albuquerque, New Mexico, on the brief, for amicus curiae Pueblo of Isleta.

Before HENRY and McKAY, Circuit Judges, and JENKINS, * Senior District Judge.

McKAY, Circuit Judge.

The City of Albuquerque [Albuquerque] filed a complaint challenging the U.S. Environmental Protection Agency's [EPA] approval of the Pueblo of Isleta's [Isleta Pueblo] water quality standards on numerous grounds. After denying Albuquerque a temporary restraining order and a preliminary injunction, the district court denied its motion for summary judgment while granting the Defendant EPA's motion for summary judgment. City of Albuquerque v. Browner, 865 F.Supp. 733 (D.N.M.1993). Albuquerque now appeals the district court's judgment.

I. Background

In 1987, Congress amended the Clean Water Act to authorize the Defendant EPA to treat Indian tribes as states under certain circumstances for purposes of the Clean Water Act. 1 Through the amendment Congress merged two of the four critical elements necessary for tribal sovereignty--water rights and government jurisdiction 2--by granting tribes jurisdiction to regulate their water resources in the same manner as states. 3 Congress's authorization for the EPA to treat Indian tribes as states preserves the right of tribes to govern their water resources within the comprehensive statutory framework of the Clean Water Act. This case involves the first challenge to water quality standards adopted by an Indian tribe under the Clean Water Act amendment. 4

The Rio Grande River flows south through New Mexico before turning southeast to form the border between Texas and Mexico. Plaintiff City of Albuquerque operates a waste treatment facility which dumps into the river approximately five miles north of the Isleta Pueblo Indian Reservation. The EPA recognized Isleta Pueblo as a state for purposes of the Clean Water Act on October 12, 1992. The Isleta Pueblo adopted water quality standards for Rio Grande water flowing through the tribal reservation, which were approved by the EPA on December 24, 1992. 5 The Isleta Pueblo's water quality standards are more stringent than the State of New Mexico's standards.

The Albuquerque waste treatment facility discharges into the Rio Grande under a National Pollution Discharge Elimination System [NPDES] permit issued by the EPA. The EPA sets permit discharge limits for waste treatment facilities so they meet state water quality standards. Albuquerque filed this action as the EPA was in the process of revising Albuquerque's NPDES permit to meet the Isleta Pueblo's water quality standards.

In its complaint, Albuquerque challenged the EPA's approval of Isleta Pueblo's water quality standards on numerous grounds. 6 The district court denied Albuquerque's request for a temporary restraining order and a preliminary injunction. Then, the district court denied Plaintiff's motion for summary judgment while granting the Defendant EPA's motion for summary judgment.

Albuquerque now appeals the district court's judgment. On April 15, 1994, Albuquerque, the EPA, the State of New Mexico, and Isleta Pueblo agreed to a new four-year NPDES permit for Albuquerque pursuant to a stipulation and agreement. The stipulation and agreement does not mention the claims in this suit, and the EPA's regulations and the Isleta Pueblo's revised water quality standards are in effect. During the briefing stage of this appeal, Albuquerque filed a motion requesting an order vacating the district court's judgment due to mootness and remand with instructions to dismiss its complaint without prejudice.

Albuquerque has raised seven issues on appeal: (1) whether the district court's opinion and order should be vacated because the case is mooted by an agreement negotiated by the parties; (2) whether the EPA reasonably interpreted § 1377 of the Clean Water Act as providing the Isleta Pueblo's authority to adopt water quality standards that are more stringent than required by the statute, and whether the Isleta Pueblo standards can be applied by the EPA to upstream permit users; (3) whether the EPA complied with the Administrative Procedure Act's notice and comment requirements in approving the Isleta Pueblo's standards under the Clean Water Act; (4) whether the EPA's approval of the Isleta Pueblo's standards was supported by a rational basis; (5) whether the EPA's adoption of regulations providing for mediation or arbitration to resolve disputes over unreasonable consequences of a tribe's water quality standards is a reasonable interpretation of § 1377(e) of the Clean Water Act; (6) whether the EPA's approval of the Isleta Pueblo's ceremonial use designation offends the Establishment Clause of the First Amendment; and (7) whether the Isleta Pueblo's standards approved by the EPA are so vague as to deprive Albuquerque of due process.

Summary judgment is proper if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Albuquerque's challenge of the EPA's decision is not premised on disputed facts; rather, it asserts that the EPA was not entitled to judgment as a matter of law. We review the district court's summary judgment de novo, using the standards that were applicable in the district court. Pueblo of Sandia v. United States, 50 F.3d 856, 859 (10th Cir.1995); Lewis v. Babbitt, 998 F.2d 880, 881 (10th Cir.1993).

II. Mootness

As a preliminary issue, Albuquerque has filed a motion to vacate the district court's opinion and order and to remand this action to the district court with instructions to dismiss their complaint without prejudice. As a basis for this motion, Albuquerque asserts that the case is mooted by a negotiated agreement whereby Albuquerque, the EPA, the State of New Mexico, and the Isleta Pueblo have each agreed to a new four-year NPDES permit for the Albuquerque waste facility. Thus, Albuquerque asserts that under United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950), we should vacate the judgment and dismiss the complaint without prejudice.

We deny Albuquerque's motion because the case is not moot. "The burden of demonstrating mootness 'is a heavy one.' " Los Angeles County v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632-33, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953)). Under the mootness doctrine, " 'a case is moot when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome.' " Davis, 440 U.S. at 631, 99 S.Ct. at 1383 (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969)). The settlement agreement, which fails to even mention this case, does not resolve this suit. Under the settlement, the EPA has not withdrawn its approval of the Isleta Pueblo standards or changed its regulations. A "live" controversy still exists here because the parties still disagree about whether the EPA's approval of the Isleta Pueblo standards is lawful under the Clean Water Act and the U.S. Constitution and whether the EPA's regulations are consistent with the Act.

Parties lack a legally cognizable interest in the outcome of a case if "(1) it can be said with assurance that 'there is no reasonable expectation ...' that the alleged violation will recur, ... and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." Davis, 440 U.S. at 631, 99 S.Ct. at 1383 (citations omitted). The parties in this case have retained a legally cognizable interest because the Isleta Pueblo water quality standards and the EPA's regulations challenged in...

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