USEPA Determines “Checkerboard” Area of Mexico is “Indian Country”

The U.S. 10th Circuit Court of Appeals recently upheld the U.S. Environmental Protection Agency's ("EPA") determination that a "checkerboard" area of northwestern Mexico is "Indian country" subjecting a proposed uranium mine to regulation by the EPA instead of the New Mexico Environmental Department.   Therefore, Hydro Resources Inc. must obtain an underground injection control ("UIC") permit from the EPA pursuant to the Safe Drinking Water Act.   EPA has jurisdiction to implement its UIC for all lands in the United States, including Indian lands, unless the state or tribal government has been granted primacy to enforce the program. New Mexico has been delegated primacy for UIC programs, but no tribal nation has UIC jurisdiction for the Hydro Resources property. 

The checkerboard landownership in northwestern New Mexico was created from federal land grants to railroads in the 1800s, but after the railroad boom, the federal government re-purchased several land parcels for individual Navajos and the Navajo Nation. Hydro Resources purchased lands in fee simple within the checkerboarded area of mixed Indian and non-Indian lands.   The EPA determined that Hydro Resources' land was part of a "dependent Indian community" subjecting the proposed mine to EPA regulation.   Hydro Resources appealed the EPA's determination because it meant that Hydro Resources must obtain a federal permit instead of the approval it already obtained from the New Mexico Environmental Department. 

The 10th Circuit ruled that the costs and delays that would be incurred by Hydro Resources to secure an EPA permit constituted a sufficient “injury in fact” for standing to participate in the case. Because EPA's factual determination of the land status was outside its delegated authority, the 10th Circuit declined to grant Chevron deference to EPA’s administrative decision.   Considering that 97% of the population were Navajos and shared traditional Navajo living and working styles, the 10th Circuit nevertheless upheld the land designation determination that the Church Rock Chapter of the Navajo Nation constitutes a legitimate "community of reference" under the "dependent communities" standard that defines Indian country.   In his dissent, Judge Frizzel contended that the Church Rock Chapter should not be considered a community of reference because the land in question was uninhabited and lies approximately six miles from the Church Rock Chapter.   The dissent also noted the precedent of the opinion because never before had non-Indian fee land outside the exterior boundaries of a reservation been held to be dependent Indian community. The majority explicitly declined to rule on whether the same determination would be made if a tribal nation, rather than EPA, were asserting jurisdiction. 

This article was authored by Ronda L. Sandquist, Jackson Kelly PLLC. For more information on the author see here.