Menominee Indian Tribe of Wis. v. Envtl. Prot. Agency, No. 19-1130

• Decision Date: 27 January 2020
• Docket Number: No. 19-1130
• Citation: 947 F.3d 1065
• Parties: MENOMINEE INDIAN TRIBE OF WISCONSIN, Plaintiff-Appellant, v. ENVIRONMENTAL PROTECTION AGENCY and United States Army Corps of Engineers, et al. Defendants-Appellees, and Aquila Resources, Inc., Intervening Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

947 F.3d 1065

MENOMINEE INDIAN TRIBE OF WISCONSIN, Plaintiff-Appellant,

v. ENVIRONMENTAL PROTECTION AGENCY and United States Army Corps of Engineers, et al. Defendants-Appellees,andAquila Resources, Inc., Intervening Defendant-Appellee.

No. 19-1130

United States Court of Appeals, Seventh Circuit.

Argued September 5, 2019

Decided January 27, 2020

Janette K. Brimmer, Attorney, Earthjustice, Seattle, WA, Lindzey A. Spice, Attorney, Menominee Indian Tribe of Wisconsin, Keshena, WI, for Plaintiff-Appellant.

Sommer H. Engels, Attorney, Department of Justice, Environment & Natural Resources Division, Washington, DC, for Defendants-Appellees.

Before Sykes, Hamilton, and Scudder, Circuit Judges.

Scudder, Circuit Judge.

For the Menominee Indian Tribe, the river that bears its name is a place of special importance. The Menominee River runs along the border between Northern Wisconsin and Michigan’s Upper Peninsula. According to its origin story, the Tribe came into existence along the banks of the River thousands of years ago. This birthplace contains artifacts and sacred sites of historic and cultural importance to the Tribe. All these years later, the Tribe returns to the riverbanks for ceremonies and celebrations.

Sometime before 2017, the Tribe learned that Aquila Resources intended to embark on a mining project known as the Back Forty alongside the Menominee River and in close proximity to Wisconsin’s northeast border. Aquila successfully applied for several necessary permits from the state of Michigan. Concerned the project would disrupt and dislocate aspects of tribal life, the Tribe wrote letters to the Environmental Protection Agency and Army Corps of Engineers asking both agencies to reconsider its 1984 decision to allow Michigan, instead of the federal government, to issue certain permits under the Clean Water Act. The EPA and Army Corps responded not by revisiting the prior delegation of permitting authority but instead by informing the Tribe of what it already knew—that Michigan would decide whether to issue a so-called dredge-and-fill permit to authorize Aquila’s Back Forty project.

The Tribe responded on two fronts—first by commencing an administrative proceeding in Michigan and second by filing suit in federal court in Wisconsin. The district court dismissed the Tribe’s complaint on the ground that it did not challenge any final action taken by the EPA or Army Corps. The court also denied the Tribe’s request to amend its complaint. Despite reservations about how the federal agencies responded to the Tribe’s concerns, we affirm.

I

To open and operate the Back Forty mine, Aquila had to acquire several regulatory permits. The focus here is on Aquila’s need for a dredge-and-fill permit, which comes under Section 404 of the Clean Water Act, 33 U.S.C. § 1344, and allows its holder to fill wetlands.

Section 404 regulation is not an entirely federal undertaking. Although the EPA and Army Corps are tasked with enforcing the Clean Water Act, Congress allows states to apply to assume Section 404 permitting authority over waters in their jurisdictions. See 33 U.S.C. § 1344(g) – (h). Michigan is one of only two states that has implemented a Section 404 permit program. See 40 C.F.R. § 233.70 (codifying Michigan’s assumption of dredge-and-fill permitting over certain waters).

When a state assumes permitting authority, the federal government is not removed from the Section 404 regulatory process altogether. The EPA maintains an oversight role reviewing state-proposed permits. See 33 U.S.C. § 1344(j). A state may not issue a proposed permit if the EPA objects. See id . The EPA and Corps also continue to hold regulatory authority over waterways that flow between states and can be used for commercial activity, as Congress determined that those waters cannot be delegated to state control. See id . § 1344(g)(1) (providing that federal agencies issue permits for navigable waters—defined as those waters used or susceptible to use in interstate commerce).

Knowing that Michigan had received authority for dredge-and-fill permitting in 1984, Aquila directed its Section 404 application to Michigan’s Department of Environmental Quality. The company’s application, and the Back Forty project more generally, concern the Menominee Tribe. The Tribe fears that some of its sacred sites could be damaged by changes to the River and increased activity on its banks. Tribal members often go to the River’s banks to visit the burial mounds of tribal ancestors and to perform and participate in ceremonies. Recently the Tribe reports working to reestablish wild rice at the mouth of the River to preserve and continue its traditional agricultural practices. The Tribe also became of the view that the recent growth of commercial activity on the Menominee River meant that the federal government, not Michigan, should be in charge of permitting.

In August 2017 the Tribe expressed its concerns in letters to the EPA and Army Corps. The Tribe acknowledged that under the 1984 agreement between the EPA and Michigan, the state took over issuance of dredge-and-fill permits for many of the state’s waterways, subject to the EPA’s oversight preserved in the Clean Water Act. See 33 U.S.C. § 1344(j). But the Tribe emphasized that circumstances had changed since the 1984 delegation. In the past 35 years, the Tribe explained, the Menominee River had experienced a growth of commercial activity, including riverboat tourism. This commercial activity, the Tribe continued, had a legal consequence: the segment of the Menominee River nearest to the proposed Back Forty mining site constituted a navigable waterway within the meaning of the Clean Water Act and therefore permitting for it could not remain delegated to the state. The Tribe asked the EPA and Corps to revisit whether they—as opposed to the state of Michigan—should exercise authority over Aquila’s Back Forty permit application. At the very least, the Tribe sought to consult with the EPA and Corps before Michigan made any decision about the Back Forty project.

Who decides the permitting question matters greatly to the Tribe, and for good reason. The Tribe sought to negotiate directly with the federal government because the United States has a long-recognized general trust responsibility toward Native Americans. See Seminole Nation v. United States , 316 U.S. 286, 297, 62 S.Ct. 1049, 86 L.Ed. 1480, 86 L.Ed. 1777 (1942) (explaining government’s "moral obligations of the highest responsibility and trust" toward Indian communities); see also United States v. Mitchell , 463 U.S. 206, 225–26, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (emphasizing the same point).

The Tribe also saw specific procedural and legal benefits to the dredge-and-fill permit being decided by the federal agencies. If the permitting had been handled in the federal system, the Tribe would have enjoyed more participation rights. For example, the National Environmental Policy Act would have applied and likely required the EPA to complete an environmental assessment or impact statement about the Back Forty mine. See 42 U.S.C. § 4332(C) ; 40 C.F.R. §§ 1501.3, 1501.4. Through that process, the Tribe would have an opportunity to request consultation with federal environmental officials. See 40 C.F.R. §§ 1501.2(d)(2), 1501.7(a)(1).

The agencies responded by reinforcing—but not revisiting—the 1984 delegation. For its part, the Corps explained that it could not exercise jurisdiction over the permitting process for the Back Forty mine because permitting for the relevant section of the Menominee River had been assumed by Michigan in 1984. One month later, the Tribe received a six-sentence letter from the EPA not at all addressing its concerns but offering to speak with the Tribe by phone. Neither response addressed the Tribe’s request for the agencies to reconsider whether changed circumstances warranted the renewed exercise of federal authority over the relevant section of the Menominee River. Taking those letters as non-responsive, the Tribe turned to the courts and filed this lawsuit in the Eastern District of Wisconsin, naming the EPA, Army Corps, and the agencies’ secretaries as defendants.

The federal lawsuit did not proceed very far. Aquila intervened in the action and joined the agencies in moving under Federal Rule of Civil Procedure 12(b)(1) and (6) to dismiss the Tribe’s complaint. The district court granted the motion on the basis that the challenged EPA and Army Corps letters were not "final agency actions" within the meaning of Section 704 of the Administrative Procedure Act and therefore were not subject to judicial review.

At the same time, the Michigan Department of Environmental Quality continued processing Aquila’s Section 404 permit application. As required under its agreement with the EPA, Michigan submitted its proposed dredge-and-fill permit for Aquila’s mine to the EPA for federal review. The EPA objected to the permit and asked Michigan for additional information. A few months later, the state submitted a new draft permit. Upon reviewing the new draft and Michigan’s responses, the EPA withdrew its prior objections on the basis that its concerns had been alleviated. More specifically, the EPA allowed permitting to proceed if certain conditions were included in the final state permit. The state complied and granted Aquila the permit in June 2018. Shortly thereafter the Tribe challenged the permit in Michigan’s administrative system. That case is still pending.

II

This appeal presents two questions—one narrow and one broad. The first is whether the agency action here is judicially reviewable. The broader question asks what legal avenue is available for the Tribe to seek review of the state delegation of the permitting process for the part of the Menominee River affected by the Back Forty project in light of changed circumstances.

A

We begin with the narrow question, which returns us to the Tribe’s complaint. The Tribe invoked the Administrative Procedure Act and...