Energy and Environment MonitorPrivate lands intermixed with Federal and Indian lands are subject to state jurisdiction for the Safe Drinking Water Act, not Federal jurisdiction arising from geographic nexus to Indian Land.
On May 11, 2009, we reported that the Tenth Circuit held that a section of privately-owned, uninhabited land in New Mexico near, but not within, the Navajo Reservation was subject to Environmental Protection Agency (“EPA”) jurisdiction for purposes of granting UIC permits to a uranium mining operation pursuant to the Safe Drinking Water Act. Hydro Resources, Inc. v. U.S. Environmental Protection Agency (10th Cir 2009) ("Hydro II"). The Court reversed this ruling on June 15, 2010. This decision could have significant nationwide regulatory implications for any party seeking UIC permits near any Indian reservation or “Indian country.”
The lands are within what is known as a "checkerboard area," where federal, state, Indian and private lands are intermixed. The prior decision confirmed EPA's Land Status Determination finding that the private land was "Indian land" pursuant to EPA's UIC program regulations. The basis for the EPA’s regulation was 18 U.S.C. § 1151, the Indian Major Crimes Act, which defined "Indian country" for the purpose of criminal jurisdiction. The Tenth Circuit had ruled in 2000 (HRI, Inc. v. U.S. Environmental Protection Agency, 198 F.3d 1224 (10th Cir. 2000) ("Hydro I")) that a section abutting the private land at issue was clearly Indian country, and had remanded the issue of the status of the private land to EPA for a final determination. EPA did so, and determined Hydro's private lands to be Indian country, or Indian lands as contemplated by EPA's regulations (40 C.F.R. §144.3). However, EPA had not approved the Navajo Nation's application to assume primary UIC permitting authority over privately held fee lands in the checkerboard area.
Hydro Resources petitioned for rehearing en banc. Hydro intended to engage in mining on its private land that the Court had found to be Indian lands. It had previously obtained a permit from the State of New Mexico for its UIC wells in 1989. New Mexico had sought and obtained from EPA a mandatory "aquifer exemption" for its mining activities because the aquifer would not be used as a source of drinking water. The same aquifer underlies both the private land and the Indian lands clearly subject to federal jurisdiction.
Sitting en banc, the Tenth Circuit reversed its 2009 holding in a 6-5 decision. The majority held that the lands owned by Hydro could not be Indian country, and that the State of New Mexico, not the EPA was the proper regulatory authority, with regard to the UIC wells on Hydro's private lands. The majority opinion (79 pages) relied principally on the U.S. Supreme Court's 1998 decision in Alaska v. Native Village of Venetie Tribal Governments, holding that only Congress has the power to prescribe what lands are Indian country. The decision means that the State of New Mexico will exercise permitting authority on the private land while EPA will do so on the Indian land.
The two dissenting opinions held that because the lands owned by Hydro were close to the Navajo Nation's Church Rock Chapter, the private lands should be subject to the EPA's regulatory jurisdiction, particularly in light of the expected environmental impacts from the mine on the native community. Both dissenting opinions suggested that the U.S. Supreme Court would ultimately address the consequences of this controversial ruling in which 5 states, 4 New Mexico Pueblos and the National Mining Association were friends of the Court and the Navajo Nation was an Intervenor.
This article was authored by Gina Guy, Jackson Kelly PLLC. For more information on the author, see here.
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