HRI INC. v. Envtl. Protection Agency

Decision Date06 January 2000
Docket NumberNos. 97-9556,97-9557,s. 97-9556
Parties(10th Cir. 2000) HRI, INC., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. NAVAJO NATION, Intervenor, BEVERLY MARTIN, Amicus Curiae. NEW MEXICO ENVIRONMENT DEPARTMENT, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. NAVAJO NATION, Intervenor, BEVERLY MARTIN, Amicus Curiae
CourtU.S. Court of Appeals — Tenth Circuit

Appeal from a Decision of the United States Environmental Protection Agency

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Paul E. Frye, Nordhaus, Haltom, Taylor, Taradash & Frye, LLP, Albuquerque, New Mexico (Daniel I.S.J. Rey-Bear and Jill E. Grant of Nordhaus, Haltom, Taylor, Taradash & Frye, LLP and Herb Yazzie, Attorney General, and James R. Bellis, Assistant Attorney General, Navajo Nation Department of Justice, Window Rock, Arizona, with him on the brief) for the Intervenor, Navajo Nation.

Jeptha P. Hill, Law Office of Jep Hill, Austin, Texas, for the Petitioner, HRI, Inc.

Susan M. McMichael, Special Assistant Attorney General (Carl John McKay, Assistant General Counsel, with her on the brief) Santa Fe, New Mexico, for the Petitioner, New Mexico Environment Department.

Thomas Allen Lorenzen, Environmental Defense Section, US Department of Justice (Lois J. Schiffer, Assistant Attorney General, Environment & Natural Resources Division with him on the brief), Washington, D.C., for the Respondent, Environmental Protection Agency.

Johanna Matanich and Roderick Ventura, DNA - People's Legal Services, Inc., Crownpoint, New Mexico, filed an amicus curiae brief for Beverly Martin.

Before EBEL, BRISCOE and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

This case involves petitions for review of actions by the United States Environmental Protection Agency ("EPA") under the Safe Drinking Water Act ("SDWA"), 42 U.S.C. 300f to 300j-26. Petitioners Hydro Resources, Inc. ("HRI") and New Mexico Environment Department ("NMED") challenge EPA's decision to implement the direct federal underground injection control ("UIC") program on certain New Mexico lands, the jurisdictional status of which EPA considers disputed. Petitioner NMED challenges an additional EPA decision to implement the direct federal UIC program on adjoining lands that EPA considers Indian country under 40 C.F.R. 144.3 and 18 U.S.C. 1151. These petitions require us to consider several important questions, including the level of procedural formality required for EPA decisions regarding federal Indian country jurisdiction under the SDWA; the effect of state adjudications against a tribe on EPA's authority to assess whether lands are Indian country; and the Indian country status of certain federal trust lands in the Eastern Navajo Agency. We exercise jurisdiction under 42 U.S.C. 300j-7(a)(2), dismissing in part and remanding in part.

I

The historical and procedural background is complex and implicates issues of administrative and environmental law as well as federal Indian law. To elucidate the issues involved, we briefly relate the history of the lands in question and the procedural history of their regulation under the SDWA.

A. Background: Sections 8 and 17 and the Eastern Navajo Agency

HRI, a non-Indian corporation, proposes to operate a uranium mine in McKinley County, New Mexico. This mine site--the "Churchrock mine" site--is located in an area of northwestern New Mexico often known as the "checkerboard" because of its pattern of mixed Indian and non-Indian land title, originally stemming from railroad land grants. The lands at issue consist of two parcels. The first comprises approximately 160 acres located in the southeast portion of Section 8, Township 16N, Range 16W, owned by HRI in fee simple and hereinafter referred to as the Section 8 property.1 The United States owns the remainder of Section 8 in fee simple; the status of that land is not at issue here.

The second parcel is in Section 17, Township 16N, Range 16W, south of and contiguous to the Section 8 property. Section 17 is a split estate. The surface is owned by the United States in trust for the Navajo Nation. HRI holds the mineral rights, as well as certain surface use rights under a 1929 reservation and a 1959 Surface Owner's Agreement between the Nation and Santa Fe Pacific Railroad Company, a predecessor in interest to HRI. This agreement allows HRI to use the surface of Section 17 for mining purposes. This petition for review concerns approximately 200 acres in the northwest quadrant of Section 17--hereinafter referred to as the Section 17 property.

These lands are located in the "checkerboard" area of the Eastern Navajo Agency, within the borders of the State of New Mexico, in an area often referred to as the "EO 709/744 area" because of its establishment as an Indian reservation under two executive orders bearing those numbers. In Pittsburg & Midway Coal Co. v. Yazzie, 909 F.2d 1387, 1419-20 (10th Cir. 1990) (hereinafter Yazzie), a case involving Navajo efforts to tax a coal mine in northwestern New Mexico, we held that the reservation status of the EO 709/744 area was terminated by executive and Congressional action. We noted that not long after Executive Orders 709 and 744 added some 1.9 million acres of land in northwestern New Mexico to the Navajo Reservation in 1907, Presidents Roosevelt and Taft issued two additional executive orders, EO 1000 in 1908 and EO 1284 in 1911, which restored unalloted lands in the EO 709/744 area to the public domain. See id. at 1391-92.2 Concluding that the language of restoring lands to the public domain sufficed to terminate the EO 709/744 area as a reservation, see id. at 1419, we declined to declare the entire EO 709/744 area to be a de facto reservation in the face of evidence of Congressional intent to disestablish that area, see id. at 1420. We nevertheless recognized the predominantly Navajo demographic character of the area, see id. at 1419, and the complicated jurisdictional questions created by the "checkerboard" nature of land titles in the area, id. at 1421, and remanded the case to the district court to determine "to what extent the surface rights of the South McKinley Mine are held by the Navajo Tribe or by Navajo allottees." Id. at 1422.

Some of the jurisdictional questions that Yazzie left open were revisited in Pittsburg & Midway Coal Co. v. Watchman, 52 F.3d 1531 (10th Cir. 1995) (hereinafter Watchman), which reversed the district court's finding on remand that the South McKinley Mine is not Indian country under a "dependent Indian community" analysis. See id. at 1542-45. Relying on Supreme Court and circuit precedent recognizing dependent Indian communities both geographically very large and very small, we held that the district court erred in restricting the "community of reference" of its analysis to the mine site alone. See id. at 1543-45. Watchman also stated a four-part test for determining whether a given community of reference constitutes a dependent Indian community under 18 U.S.C. 1151(b). See id. at 1545.3

B. Statutory Framework under the SDWA

The SDWA is an environmental statute establishing overall minimum drinking water protection standards for the nation, and providing, in many instances, for delegation of specific regulation and enforcement to states and Indian tribes. The statute directs EPA to establish minimum requirements for control of underground injection processes in order to protect sources of drinking water. See 42 U.S.C. 300h. 42 U.S.C. 300h-1 provides for state primary enforcement of UIC programs ("primacy") upon a showing by that state that its program meets the requirements of the SDWA. For states without programs, or whose programs have been disapproved, EPA is required to prescribe federal UIC requirements. See 42 U.S.C. 300h-1(c). In 1986, Congress added 42 U.S.C. 300h-1(e), providing for primary UIC program enforcement responsibility by an Indian Tribe under certain circumstances. 42 U.S.C. 300h-1(e) additionally provides that until a Tribe assumes primary responsibility, the "currently applicable underground injection control program shall continue to apply," and if such program does not exist, EPA shall prescribe one.

1. UIC Programs: State, Federal, and Tribal

Two UIC programs are at issue in this case. One is New Mexico's program, the other EPA's program for Indian lands. EPA approved New Mexico's program for "Class III" wells, used for in situ leach uranium mining, effective August 10, 1983. See 40 C.F.R. 147.1601. The approval of New Mexico's program specifically extended to "[certain categories of] injection wells in the State of New Mexico, except for those on Indian lands." Id.

Effective November 25, 1988, EPA approved an EPA-administered UIC program for "Indian lands in New Mexico." 40 C.F.R. 147.1603. After Congress in 1986 authorized EPA to treat Indian tribes as states for SDWA purposes, see 42 U.S.C. 300h-1(e), the agency approved the Navajo Nation, in 1994, for Treatment as a State ("TAS") with respect to "all lands located within the exterior boundaries of the Navajo Reservation . . . all satellite reservations . . . and the following lands located outside the boundaries of the formal Navajo Reservation within the Eastern Navajo Agency: all Navajo tribal trust lands, all Navajo allotments, and all tribal fee lands and federal lands previously determined to be part of 'Indian country.'" (VI R. Tab 112 at 1.) EPA did not approve the Navajo Nation's TAS application with respect to private fee lands and state trust lands within the Eastern Navajo Agency, stating that the Navajo Nation had "not demonstrated the requisite jurisdiction." Id. The Navajo Nation has not yet assumed primacy in SDWA enforcement for those lands for which its TAS application was approved.

In the preamble to its final rule promulgating federally administered...

To continue reading

Request your trial
37 cases
  • Robinson v. Salazar
    • United States
    • U.S. District Court — Eastern District of California
    • January 17, 2012
    ...were made to sell the reservation, the military protected against trespass, and allotments were proposed. See HRI, Inc. v. E.P.A., 198 F.3d 1224, 1231 (10th Cir. 2000) (declining to find a de facto reservation in the face of evidence of Congressional intent to disestablish that area); See U......
  • Dark-Eyes v. Com'R of Revenue Services, No. 17140.
    • United States
    • Connecticut Supreme Court
    • January 3, 2006
    ...and good faith."12 (Citations omitted; internal quotation marks omitted.) Id., at 92; see also HRI, Inc. v. Environmental Protection Agency, 198 F.3d 1224, 1246 (10th Cir.2000) (reaffirming that federal executive is to consider its strict fiduciary obligation when interpreting regulations t......
  • Club One Casino, Inc. v. U.S. Dep't of the Interior
    • United States
    • U.S. District Court — Eastern District of California
    • July 13, 2018
    ...historically been referred to as ‘Indian country.’ " Chaudhuri , 802 F.3d at 280 ; see 18 U.S.C. § 1151 ; accord HRI, Inc. v. EPA , 198 F.3d 1224, 1250 (10th Cir. 2000) (quoting Mustang Prod. Co. v. Harrison , 94 F.3d 1382, 1384 (10th Cir. 1996) ("In order to determine whether the Tribes ha......
  • U.S. v. Overholt, No. 00-5074.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • October 10, 2002
    ...mandated, state-administered regulatory scheme for the protection of natural sources of drinking water. See HRI, Inc. v. E.P.A., 198 F.3d 1224, 1232 (10th Cir. 2000). The Act delegates primary enforcement responsibility to the states. Each state was required to submit for approval by the EP......
  • Request a trial to view additional results
7 books & journal articles
  • Environmental crimes.
    • United States
    • American Criminal Law Review Vol. 46 No. 2, March 2009
    • March 22, 2009
    ...Indian tribes may also assume primary responsibility for underground injection control. [section] 300h-1(e); see HRI, Inc. v. EPA, 198 F.3d 1224, 1233 (10th Cir. 2000) (in dispute between state and Indian tribe over ownership of land, EPA will implement necessary (357.) See United States v.......
  • Environmental crimes.
    • United States
    • American Criminal Law Review Vol. 47 No. 2, March 2010
    • March 22, 2010
    ...Indian tribes may also assume primary responsibility for underground injection control. [section] 300h-1(e); see HRI, Inc. v. EPA, 198 F.3d 1224, 1233 (10th Cir. 2000) (in dispute between state and Indian tribe over ownership of land, EPA will implement necessary (361.) See United States v.......
  • Environmental crimes.
    • United States
    • American Criminal Law Review Vol. 45 No. 2, March 2008
    • March 22, 2008
    ...Indian tribes may also assume primary responsibility for underground injection control. Id. [section] 300h-1(e); see HRI, Inc. v. EPA, 198 F.3d 1224, 1233 (10th Cir. 2000) (in dispute between state and Indian tribe over ownership of land, EPA will implement necessary (366.) See United State......
  • Environmental crimes.
    • United States
    • American Criminal Law Review Vol. 43 No. 2, March 2006
    • March 22, 2006
    ...tribes may also assume primary responsibility for underground injection control. 42 U.S.C. [section] 300h-1(e); see HRI, Inc. v. EPA, 198 F.3d 1224, 1233 (10th Cir. 2000) (holding in dispute between state and Indian tribe over ownership of land, EPA will implement necessary (356.) See Unite......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT