Manygoats v. Kleppe, 77-1001
| Decision Date | 17 June 1977 |
| Docket Number | No. 77-1001,77-1001 |
| Citation | 558 F.2d 556 |
| Parties | , 7 Envtl. L. Rep. 20,576 Paul MANYGOATS et al., Appellants, v. Thomas S. KLEPPE et al., Appellees, and Exxon Corporation, Intervenor-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Richard W. Hughes, Shiprock, N. M., for appellants.
John J. Zimmerman, Washington, D. C. (Peter R. Taft, Asst. Atty. Gen., Washington, D. C., Victor R. Ortega, U. S. Atty., Albuquerque, N. M., Charles N. Estes, Asst. U. S. Atty. and Edmund B. Clark, Atty., Dept. of Justice, Washington, D. C., were with him on the brief), for appellees.
Robert M. Perry, Houston, Tex. (Lynn H. Slade, Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, N. M., was with him on the brief), for intervenor-appellee.
Before McWILLIAMS, BREITENSTEIN and DOYLE, Circuit Judges.
Seventeen members of the Navajo Tribe of Indians seek to enjoin the performance of an agreement whereby the Navajo Tribe granted to intervenor Exxon Corporation the right to explore for, and mine, uranium on tribal lands. Defendant Secretary of the Interior approved the agreement. Plaintiffs base their claim on the asserted inadequacy of the Environmental Impact Statement, EIS, required by the National Environmental Policy Act, NEPA, 42 U.S.C. § 4321 et seq. They appeal from the denial of a preliminary injunction and the later dismissal of the action for nonjoinder of an indispensable party, the Navajo Tribe. We affirm the denial of the preliminary injunction and reverse the dismissal of the action.
In January, 1974, the Navajo Tribal Council, upon the unanimous recommendation of its Advisory Council, approved the agreement by a vote of 46-2. Section 396a, 25 U.S.C., requires that the Secretary approve leases for mining on unallotted lands within an Indian reservation. Section 415, 25 U.S.C., imposes a similar requirement on leases for the development of natural resources.
An EIS is required when major federal action significantly affects the human environment, 42 U.S.C. § 4332(2)(C). The requirement applies to leases of Indian lands. Davis v. Morton, 10 Cir., 469 F.2d 593, 597-598. The Bureau of Indian Affairs, BIA, prepared an EIS pertaining to the agreement in question and the Secretary considered it in making his decision to approve the agreement.
Appellees argue that we should not reach the EIS issue because the action may not be sustained in the absence of the Tribe. Neither the United States, which holds the tribal lands in trust for the Indians, nor the Navajo Tribe, may be sued without its consent. Cherokee Nation v. State of Oklahoma, 10 Cir., 461 F.2d 674, 681, cert. denied, 409 U.S. 1039, 93 S.Ct. 521, 34 L.Ed.2d 489; see also McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 168-169, 93 S.Ct. 1257, 36 L.Ed.2d 129. Because of its immunity from suit the Navajo Tribe may not be made an involuntary party to the action. We must consider the indispensability question because of its importance to the power of the court to proceed with the action.
Rule 19, F.R.Civ.P., covers joinder of parties. Under Subsection (a) a court must first determine whether an absent party has sufficient interest in the action to make it a necessary party within stated criteria. The financial and other benefits to the Tribe under the Exxon agreement give the Tribe sufficient interest to satisfy the requirements of Subsection (a)(2)(i). Plaintiffs say that those requirements are not determinative because the Secretary adequately represents the Tribe. Plaintiffs rely primarily on Heckman v. United States, 224 U.S. 413, 444-445, 32 S.Ct. 424, 56 L.Ed. 820. The Supreme Court there held that Indian grantees of land were not indispensable parties in a suit by the United States to cancel conveyances. The Court said that the Indians were adequately represented by their guardian, the United States.
In the instant case the duties and responsibilities of the Secretary may conflict with the interests of the Tribe. The Secretary must act in accord with the obligations imposed by NEPA. In acting upon the Navajo-Exxon agreement the Secretary, to further the national objectives declared by NEPA, must have and consider an EIS. The national interest is not necessarily coincidental with the interest of the Tribe in the benefits which the Exxon agreement provides. When there is a conflict between the interest of the United States and the interest of Indians, representation of the Indians by the United States is not adequate. See State of New Mexico v. Aamodt, 10 Cir., 537 F.2d 1102, 1106, cert. denied, 429 U.S. 1121, 97 S.Ct. 1157, 51 L.Ed.2d 572.
A finding that the Tribe is a necessary party under Rule 19(a) does not complete the inquiry. When it is determined that a party is necessary, a decision must then be made whether he is an indispensable party whose absence requires the dismissal of the suit under Rule 19(b). See Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 108-109, 88 S.Ct. 733, 19 L.Ed.2d 936. The Rule 19(b) test is "whether in equity and good conscience the action should proceed." See Wright v. First National Bank of Altus, Oklahoma, 10 Cir., 483 F.2d 73, 75.
In their assertion of indispensability, the appellees rely on Tewa Tesuque v. Morton, 10 Cir., 498 F.2d 240, cert. denied, 420 U.S. 962, 95 S.Ct. 1353, 43 L.Ed.2d 440. In that case Indian plaintiffs sought the cancellation of a lease by the Tribe to a development company. An earlier case, Davis v. Morton, 10 Cir., 469 F.2d 593, related to the same lease. In Davis non-Indians attacked the lease because of the failure of federal officials to obtain the impact statement required by NEPA. We held that leases of Indian lands were covered by NEPA. Davis did not present or discuss indispensability of the Tribe.
From the facts stated in the Tewa Tesuque opinion it appears that the plaintiffs sought the cancellation of the lease because of the lack of an environmental impact statement. The court said, 498 F.2d at 243, that the failure to file an impact statement was rendered moot by Davis and went on to affirm the trial court's dismissal of the action on the ground that the Tribe was an indispensable party. In so holding the court discussed, 498 F.2d at 242-243, the four factors mentioned in Rule 19(b) and rejected each as a ground for permitting the action to proceed in the absence of the Tribe.
In Tewa Tesuque the attack was on the lease and the action sought cancellation. In the instant case the attack is on the adequacy of the impact statement which the Secretary must consider before approving or rejecting the Navajo-Exxon agreement. The plaintiffs seek relief from the consequences of action based on the inadequate EIS. A holding that the EIS is inadequate does not necessarily result in prejudice to the Tribe. The only result will be a new EIS for consideration by the Secretary. The requested relief does not call for any action by or against the Tribe. Our attention is called to no tribal remedies or procedures available to the plaintiff for attack on a federal EIS.
Dismissal of the action for nonjoinder of the Tribe would produce an anomalous result. No one, except the Tribe, could seek review of an environmental impact statement covering significant federal action relating to leases or agreements for development of natural resources on Indian lands. NEPA is concerned with national environmental interests. Tribal interests may not coincide with national interests. We find nothing in NEPA which excepts Indian lands from national environmental policy.
The controlling test of Rule 19(b) is whether in equity and good conscience the case can proceed in the absence of the Tribe. The test should be applied by the district court which should state the facts and reasons upon which it acts. See Wright v. First National Bank of Altus, Oklahoma, 10 Cir.,483 F.2d 73, 75. We are considering the case at the appellate level and are asked to review the order of the district court which held the EIS adequate and denied a preliminary injunction. In equity and good conscience the case should and can proceed without the presence of the Tribe as a party.
Consideration of the adequacy of the EIS requires that we first examine the Navajo-Exxon agreement. The objective of the agreement is to explore for, discover, mine and process uranium deposits which may exist on 400,000 acres of tribal land in northwestern New Mexico. The project has two phases, (1) exploration, and (2) mining and milling. Plans for the first year's exploration must be coordinated with the Tribe, submitted to and approved by the BIA and by the Secretary of the Interior acting through the United States Geological Survey (USGS). The submission is required both by the prospecting permit and the Secretary's regulations. See 25 C.F.R. § 177.6 and 30 C.F.R. § 231.10(a) and (b). The plan must be responsive to the protection of nonmineral resources and surface reclamation as specified in the Permit, § III(12), pp. 14-15. No operations may be conducted except under an approved plan. 30 C.F.R. § 231.10(a).
If Exxon elects to make the lease effective to any designated development block, it must obtain federal approval of a detailed plan of operations including environmental preservation and surface reclamation. See Lease §§ IX(5) and XI, pp. 8-10, and Regs. 25 C.F.R. § 177.7 and 30 C.F.R. § 231.10(a) and (c). All...
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