Hydro Resources, Inc. v. U.S. Environmental Protection Agency, No. 07-9506 (10th Cir. 6/15/2010)
| Decision Date | 15 June 2010 |
| Docket Number | No. 07-9506.,07-9506. |
| Parties | HYDRO RESOURCES, INC., Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, and NAVAJO NATION, Intervenor. STATE OF NEW MEXICO; NATIONAL MINING ASSOCIATION; UNITED NUCLEAR CORPORATION; STATE OF COLORADO; STATE OF KANSAS; STATE OF UTAH; STATE OF WYOMING; THE PUEBLO OF SANTA CLARA; THE PUEBLO OF SANDIA; THE PUEBLO OF ISLETA; and THE PUEBLO OF ZIA, Amici Curiae. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Marc D. Flink (Alfred C. Chidester and Casie D. Collignon, Baker & Hostetler LLP, Denver, Colorado, and Jon J. Indall, Comeau, Maldegen, Templeman & Indall, LLP, Santa Fe, New Mexico, with him on the briefs) Baker & Hostetler LLP, Denver, Colorado, for Petitioner.
David A. Carson (Ronald J. Tenpas, Acting Assistant Attorney General, Ignacia S. Moreno, Assistant Attorney General, and John C. Cruden, Deputy Assistant Attorney General, with him on the briefs), United States Department of Justice, Environment and Natural Resources Division, Denver, Colorado, for Respondent.
Paul E. Frye (Louis Denetsosie, Attorney General, and David A. Taylor, Navajo Nation Department of Justice, Window Rock, Arizona, and Jill E. Grant, Nordhaus Law Firm, LLP, Washington, D.C., with him on the briefs), Frye Law Firm, P.C., Albuquerque, New Mexico, for Intervenor.
Gary K. King, Attorney General, and Christopher D. Coppin, Special Assistant Attorney General, Albuquerque, New Mexico, and Justin Miller, Chief Counsel, Office of the Governor, Santa Fe, New Mexico, filed an Amicus Curiae brief for the States of Colorado, Kansas, New Mexico, Utah, and Wyoming; (ming.
Anthony J. Thompson and Christopher S. Pugsley, Thompson & Simmons, PLLC, Washington, D.C., filed an Amicus Curiae brief for National Mining Association in support of Petitioner.
Robert W. Lawrence, Jonathan W. Rauchway and Constance L. Rogers, Davis Graham & Stubbs LLP, Denver, Colorado, filed an Amicus Curiae brief for United Nuclear Corporation in support of Petition for Rehearing en banc and in support of reversal.
Gary K. King, Attorney General, and Christopher D. Coppin, Special Assistant Attorney General, Albuquerque, New Mexico; Justin Miller, Chief Counsel, Office of the Governor, Santa Fe, New Mexico; Mark L. Shurtleff, Utah Attorney General, Salt Lake City, Utah; Steve Six, Attorney General of Kansas, Topeka, Kansas; John W. Suthers, Attorney General of Colorado, Denver, Colorado; and Bruce A. Salzburg, Attorney General of Wyoming; (ming, Cheyenne, Wyoming; (ming, filed an Amicus Curiae brief for the States of Colorado, Kansas, New Mexico, Utah, and Wyoming; (ming in support of Petitioner.
Richard W. Hughes, Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu, LLP, Santa Fe, New Mexico, and David C. Mielke, Sonosky, Chambers, Sachse, Mielke & Brownell, Albuquerque, New Mexico, filed an
Amici Curiae brief for Pueblos of Santa Clara, Sandia, Isleta and Zia in support of Respondent.
Before BRISCOE, Chief Judge, EBEL, TACHA, KELLY, HENRY, LUCERO, MURPHY, O'BRIEN, TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges.
GORSUCH, Circuit Judge, joined by TACHA, KELLY, O'BRIEN, TYMKOVICH, and HOLMES, Circuit Judges.
Everyone agrees that Hydro Resources, Inc. ("HRI") must obtain a Safe Drinking Water Act ("SDWA" or "the Act") permit to mine its property. The only question is: from whom? The Environmental Protection Agency ("EPA" or the "Agency"), which administers the Act, has chosen to delegate its permitting authority in the State of New Mexico to the New Mexico Environment Department ("NMED"), but with one exception: EPA has not delegated its authority to issue permits for mining activities on "Indian lands." Thinking its land hardly qualified as "Indian land" — HRI owns its property in fee, it pays county real estate taxes, the land is uninhabited, and it is not inside any Indian reservation or otherwise set aside and superintended for Indian use — the company proceeded to apply for, and obtain, a permit from NMED. Initially, EPA professed no quarrel with this, and it has never questioned NMED's administration of the Act. But eventually a dispute broke out over the status of HRI's land and, after years of regulatory wrangling, EPA issued a "final land
status determination" expressing its judgment that HRI's land qualifies as "Indian land." As a result, EPA ruled, HRI must seek and obtain its SDWA permit from it rather than NMED.
How did EPA reach this conclusion? By regulation, EPA chose to define the term "Indian lands" — the only lands for which it did not cede primary permitting authority to NMED — to be synonymous with "Indian country," as that term is defined by 18 U.S.C. § 1151. Section 1151, in turn, provides primary federal criminal jurisdiction over certain territories: "Indian reservation[s]," "dependent Indian communities," and "Indian allotments." So it is that, for EPA to exercise primary permitting authority in this case, the Agency had to argue that the federal government, rather than the State of New Mexico, possesses primary criminal jurisdiction over HRI's private property. In this case, EPA took the position that HRI's land is Indian country and subject to federal jurisdiction because it is part of a "dependent Indian communit[y]" under § 1151(b).
But whatever HRI's land is, it can't be that. In Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998), the Supreme Court identified two "requirements" of all "dependent Indian communities" under § 1151(b). First, "the land in question" must be an "Indian community" in the sense that it has been explicitly "set aside" by Congress (or the Executive, acting under delegated authority) "for the use of the Indians as Indian land." Id. at 527, 531. Second, "the land in question" must be "dependent" in the sense that it is "under
federal superintendence." Id. at 527. HRI's land — the land in question in EPA's final land status determination — is neither of these things.
Despite this, EPA argued before a panel of this court that we should cast our gaze beyond the particular land in question. In the Agency's view, because some sufficiently significant (though unspecified) percentage of neighboring lands — what EPA calls "the community of reference" — is Indian country, HRI's land must be considered Indian country, too. In defense of its view, EPA pointed to certain of this circuit's cases, most pre-Venetie, suggesting the approach it took. Deeming itself bound by the same authority, a panel of this court upheld EPA's classification of HRI's land as Indian country. Hydro Res., Inc. v. U.S. EPA, 562 F.3d 1249 (10th Cir. 2009) ("HRI II").
HRI responded to all this with a petition for en banc review. The company argued that the "community of reference" approach advanced by EPA and certain of this circuit's cases is inconsistent with Venetie. HRI submitted, too, that our cases are in conflict with each other — while some follow EPA's approach, others after Venetie have abjured the "community of reference" test, as have decisions in our sister circuits. Seeking to sort all this out, we granted HRI's request for en banc review.
Having now heard the case anew, we find ourselves compelled to vacate EPA's final land status determination. EPA's interpretation cannot be reconciled with the Supreme Court's explanation of § 1151(b)'s plain meaning. Venetie
explicitly rejected a Ninth Circuit test composed of the very factors used in the "community of reference" test employed by EPA and certain of our pre-Venetie cases. Neither is the amorphous "community of reference" test compatible with the history and structure of the statute we are charged to interpret, or with the Supreme Court's longstanding direction that criminal statutes should be interpreted clearly and precisely to afford fair warning of their reach.
None of this is to say that EPA must tether its SDWA permitting authority to a statute defining the scope of the federal government's criminal jurisdiction over Indian lands. Had EPA chosen to define its authority under the SDWA in a different way, the result in this case might have been different. But we decide the cases as they come to us. And in this case, heeding the Supreme Court's commands in Venetie requires us to grant HRI's petition for review and vacate the Agency's final land status determination.
The history of this dispute is long and tangled. Even so, some appreciation of its twists and turns is essential. We begin by examining briefly the history of the land in question (Section I.A), the regulatory scheme governing that land and the parties before us (Section I.B), the parties' first lawsuit before this court (Section I.C), its subsequent remand to EPA (Section I.D), and the current appeal (Section I.E), all before we turn to address our jurisdiction and standard of review (Section II) and, at last, the merits of this appeal (Section III).
The land at issue in this case lies in what is commonly known as the "checkerboard" region of northwestern New Mexico. See generally Pittsburg & Midway Coal Min. Co. v. Yazzie, 909 F.2d 1387, 1389-92 (10th Cir. 1990). This region abuts the southern and eastern boundaries of the Navajo Reservation originally created by an 1868 treaty between the United States and the Navajos. Id. at 1389. And a checkerboard it is, marked by alternating parcels of land owned by the state, the federal government, the Navajo Nation, individual Navajos, and private persons and entities. See id. at 1423 app. A (map section marked "J"); Appendix.1
The checkerboard seems to have had its start with the railroad. In the late nineteenth century, the federal government granted certain lands in the region to railroad companies in an effort to induce construction. "These grants typically consisted of alternating one-mile-square parcels on each side of the...
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