case: 07-9506 document: 01018188549 date filed: 08/10/2009 ... · no. 07-9506 in the united states...

No. 07-9506

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________

HYDRO RESOURCES, INC.,

Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent, and

NAVAJO NATION,

Intervenor-Respondent.

_________

PETITION FOR REVIEW OF A DECISION OF THE

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

_________

INTERVENOR-RESPONDENT NAVAJO NATION’S

RESPONSE IN OPPOSITION TO

PETITION FOR REHEARING EN BANC_________

NAVAJO NATION NORDHAUS LAW FRYE LAW FIRM, P.C.

DEPT. OF JUSTICE FIRM, LLP Paul E. Frye

Louis Denetsosie, Jill E. Grant 10400 Academy Rd. NE

Attorney General 1401 K Street NW Suite 310

David A. Taylor Suite 801 Albuquerque, NM 87111

P. O. Drawer 2010 Washington, DC 20006 tel: 505-296-9400

Window Rock, AZ 86515

August 10, 2009 Attorneys for the Navajo Nation

Case: 07-9506 Document: 01018188549 Date Filed: 08/10/2009 Page: 1

ii

TABLE OF CONTENTS

I. SUMMARY OF APPLICABLE LEGAL PRINCIPLES . . . . . . . . . . . . . . . . . . . . 1

II. STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. Establishment and Recognition of the Chapter by the United States. . . . . . 3

B. Chapter Boundaries and Community Characteristics. . . . . . . . . . . . . . . . . . 4

C. Federal Set-Aside of the Church Rock Chapter. . . . . . . . . . . . . . . . . . . . . . 6

D. Federal Superintendence of the Church Rock Chapter. . . . . . . . . . . . . . . . . 7

III. THE PETITION SHOULD BE DENIED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

A. The Panel’s Decision is Consistent with Governing Precedent.. . . . . . . . . . 9

B. There is No Conflict With Other Circuits. . . . . . . . . . . . . . . . . . . . . . . . . . 12

C. HRI’s Fear of a Jurisdictional “Black Hole” Is Unfounded. . . . . . . . . . . . 13

D. HRI Presents No Question of Exceptional Importance. . . . . . . . . . . . . . . . 14

IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15


iii

TABLE OF AUTHORITIES

I. CASES

ACLU v. Schundler, 168 F.3d 92 (3d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Alaska v. Native Village of Venetie Tribal Gov’t, 522 U.S. 520 (1998) . . . . . . . . . . passim

Arizona Public Serv. Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 2000) . . . . . . . . . . . . . . . . . . 3

Blunk v. Arizona Dep’t of Trans., 177 F.3d 879 (9th Cir. 1999) . . . . . . . . . . . . . . . . 12, 14

Buzzard v. Oklahoma Tax Comm’m. 992 F.2d 1073 (10th Cir.),

cert. denied, 510 U.S. 994 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Cheyenne-Arapaho Tribes v. Oklahoma, 618 F.2d 665 (10th Cir. 1980) .. . . . . . . . . 10, 11

HRI, Inc. v. EPA, 198 F.3d 1224 (10th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Hydro Resources, Inc. v. EPA, 562 F.3d 1249 (10th Cir. 2009) .. . . . . . . . . . . . . . . passim

Montana v. EPA, 137 F.3d 1135 (9th Cir.), cert. denied, 525 U.S. 921 (1998) . . . . . . . . 11

Montana v. United States, 450 U.S. 544 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe,

498 U.S. 505 (1991) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Oklahoma Tax Comm’n v. Sac & Fox Nation, 508 U.S. 114 (1993) . . . . . . . . . . . . . 10, 11

Penobscot Nation v. Fellencer, 164 F.3d 706 (1st Cir. 1999),

cert. denied, 527 U.S. 1022 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Pittsburg & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531

(10th Cir. 1995) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 10, 14, 15

Seymour v. Superintendent, 368 U.S. 351 (1962) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Solem v. Bartlett, 465 U.S. 463 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7


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State v. Atcitty, __ P.3d __, Nos. 27,189, et al. (N.M. Ct. App. June 4, 2009) . . . . . . 2, 15

State v. Frank, 52 P.3d 404 (N.M. Sup. Ct. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

State v. Romero, 142 P.3d 887 (N.M. 2006) .. . . . . . . . . . . . . . . . . . . . . . . . . . 2, 10, 13, 15

Thriftway Mktg. Corp. v. State, 810 P.2d 349 (N.M. 1990) . . . . . . . . . . . . . . . . . . . . . . . . 6

United States v. Adair, 111 F.3d 770 (10th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . 3, 4, 7, 14

United States v. Arietta, 436 F.2d 1246 (10th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . passim

United States v. Martine, 442 F.2d 1022 (10th Cir. 1971) . . . . . . . . . . . . . . . . . . . . . . 3, 15

United States v. John, 437 U.S. 634 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Mazurie, 419 U.S. 544 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

United States v. M.C., 311 F.Supp. 2d 1281 (D.N.M. 2004) . . . . . . . . . . . . . . . . . . . . . . 14

United States v. McGowan, 302 U.S. 535 (1938) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

United States v. Pelican, 232 U.S. 442 (1914) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Roberts, 185 F.3d 1125 (10th Cir. 1999), cert. denied,

529 U.S. 1108 (2000) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11

United States v. Sandoval, 231 U.S. 28 (1913) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

United States v. Smiskin, 487 F.3d 1260 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . 14

UNC Resources, Inc. v. Benally, 514 F.Supp. 358 (D.N.M. 1981) . . . . . . . . . . . . . . . . . . 6

Warren Trading Post v. Arizona State Tax Comm’n, 380 U.S. 685 (1965) . . . . . . . . . . . . . . . . . 4

Williams v. Lee, 358 U.S. 217 (1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

II. STATUTES

18 U.S.C. § 1151 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5, 9, 10, 11, 15


v

18 U.S.C. § 1154 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

25 U.S.C. § 2203 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Act of May 29, 1928, ch. 853, 45 Stat. 883 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

III. REGULATIONS

25 C.F.R. § 1.4 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

25 C.F.R. part 166 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

25 C.F.R. part 162 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

25 C.F.R. part 169 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

25 C.F.R. part 212 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

IV. OTHER AUTHORITIES

Cohen’s Handbook of Federal Indian Law (2005) .. . . . . . . . . . . . . . . . . . . . . . . 2, 3, 5, 10

Executive Order No. 2513 (Jan. 15, 1917) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

James E. Lobsenz, “Dependent Indian Communities”: A Search for a Twentieth

Century Definition, 24 Ariz. L. Rev. 1 (1982) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Robert W. Young, Navajo Yearbook (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Robert W. Young, A Political History of the Navajo Tribe (1978) . . . . . . . . . . . . . . . . . . 4


Intervenor-Respondent Navajo Nation opposes the Petition for Rehearing en banc of

Hydro Resources, Inc. (“HRI”). The panel, in Hydro Resources, Inc. v. EPA, 562 F.3d 1249

(10th Cir. 2009), affirmed EPA’s determination, supported by a detailed analysis of the

Solicitor of the Interior Department, that HRI’s land is within the Navajo Church Rock

Chapter, and that the Chapter is a federally set-aside and supervised Indian community and

so is a “dependent Indian community” under 18 U.S.C. § 1151(b) and Alaska v. Native

Village of Venetie Tribal Gov’t, 522 U.S. 520 (1998). HRI’s contrary view, that an isolated

island of fee land within a dependent Indian community is not “Indian country,” would cause

jurisdictional havoc within such special enclaves, including the federally established Navajo

Chapters and the archetypal dependent Indian communities, the Indian Pueblos of New

Mexico. The panel decision breaks no new ground and is consistent with all prior decisions

of this Court and of the Supreme Court, and need not be revisited by the en banc court.

I. SUMMARY OF APPLICABLE LEGAL PRINCIPLES

HRI seeks to mine uranium in the Church Rock Chapter by injecting chemicals into

a drinking water aquifer, requiring HRI to obtain a permit under the Underground Injection

Control (“UIC”) provisions of the Safe Drinking Water Act. HRI, Inc. v. EPA, 198 F.3d

1224, 1232 (10th Cir. 2000). EPA uses the definition of “Indian country” in 18 U.S.C. §

1151for UIC jurisdictional purposes. See HRI, 198 F.3d at 1233. This case concerns whether

HRI’s island of fee land in the Church Rock Chapter is within a “dependent Indian

community” and thus “Indian country” under 18 U.S.C. § 1151(b), which would require HRI

to obtain a federal rather than a state UIC permit.


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Venetie establishes the criteria for deciding if an area is a dependent Indian

community: the land “must have been set aside by the Federal Government for the use of the

Indians as Indian land” and it must be “under federal superintendence.” Id. At 527. Because

Congress, in the Alaska Native Claims Settlement Act (“ANCSA”), “sought to end . . .

federal supervision over Indian affairs” in Alaska, id. at 523, and did away with all set-asides

but one, the Court never addressed the issue of whether to look at a parcel of land in isolation

or in the context of a community before applying these tests. See HRI, 198 F.3d at 1249.

This Circuit takes the latter approach, looking not at isolated parcels of land but at the

area of the community within which those lands are located, termed the “community of

reference.” HRI, 198 F.3d at 1249; Pittsburg & Midway Coal Mining Co. v. Watchman, 52

F.3d 1531, 1543-45 (10th Cir. 1996); see United States v. Arietta, 436 F.3d 1246, 1249-50

(10th Cir. 2006); Cohen’s Handbook of Federal Indian Law (“Cohen”) 194 (2005).

Other courts take the same approach. For example, although none of the core lands

of the Indian Pueblos in New Mexico were set aside by the United States, these lands are

dependent Indian communities. United States v. Sandoval, 231 U.S. 28, 48 (1913); Venetie,

522 U.S. at 530. Within Pueblo boundaries are some 3,000 private inholdings confirmed by

the United States under the Pueblo Lands Act, and these non-Indian lands also constitute

“Indian country.” State v. Romero, 142 P.3d 887 (N.M. 2006); State v. Atcitty, __ P.3d __,

Nos. 27,189 et al. (N.M. Ct. App. June 4, 2009) at ¶ 22; see Arietta, 436 F.3d at 1249-50.

Other Indian communities occupying federally set-aside and supervised land may also


3

be “dependent Indian communities,” see United States v. McGowan, 302 U.S. 535 (1938),

and scattered tracts of private land within these areas are also “Indian country.” Watchman,

52 F.3d at 1543 (observing that United States v. Martine, 442 F.2d 1022 (10th Cir. 1971),

held that the “entire Navajo community of Ramah, New Mexico, was a dependent Indian

community”); James E. Lobsenz, “Dependent Indian Communities”: A Search for a

Twentieth Century Definition, 24 Ariz. L. Rev. 1, 21 (1982) (noting mixed land titles in

Ramah Chapter); see Arizona Pub. Serv. Co. v. EPA, 211 F.3d 1280, 1286 (D.C. Cir. 2000).

HRI’s position that the federal set-aside and superintendence tests must be applied

only to its proposed 160-acre mine site conflicts with this Court’s precedents in Watchman,

52 F.2d at 1542-43; United States v. Adair, 111F.3d 770, 774-75 (10th Cir. 1997); HRI, 198

F.3d at 1249; and Arietta, 436 F.3d at 1249-50. HRI improperly reads the word

“communities” out of the statute and adoption of its view would result in almost paralyzing

checkerboard jurisdiction in New Mexico. See Cohen at 194.

II. STATEMENT OF FACTS

Consistent with the legal principles discussed above, the panel considered HRI’s

isolated mine site in the context of the larger Church Rock community. The panel first found

that the Chapter is the appropriate community of reference and then applied the two-pronged

Venetie test. The record fully supports the panel’s holding that the Chapter is Indian country.

A. Establishment and Recognition of the Chapter by the United States.

Navajo “Chapters” are unique in all of Indian country. AR 44 (EPA Decision) at 8.


See Williams v. Lee, 358 U.S. 217, 222 n.8 (1959), and Warren Trading Post v. Arizona1

State Tax Comm’n, 380 U.S. 685, 690 n.17 (1965), both citing the Navajo Yearbooks.

4

They were established by the United States, AR 44, App. at 7 (Interior Solicitor’s opinion);

Robert W. Young, Navajo Yearbook (1958) 191. The legendary Commissioner of Indian1

Affairs John Collier assured the Navajo Nation Council that the Chapters were “important

and official in every sense.” Robert W. Young, A Political History of the Navajo Tribe 67-68

(1978). The Navajo Nation has embraced the Chapters as units of local self-government, and

the United States continues to treat the Church Rock Chapter, the one at issue here, as a

distinct community of Indians who depend primarily on federal and tribal government

services and protection. AR 13b, App. 132 (affidavit of BIA Superintendent).

B. Chapter Boundaries and Community Characteristics.

The first requirement of a dependent Indian community under 18 U.S.C. § 1151(b)

is that it have reasonably ascertainable boundaries. Adair, 111 F.3d at 774. Although a

metes and bounds description is not required, id., the Church Rock Chapter is defined by

metes and bounds, Hydro Resources, 562 F.3d at 1263; AR 13b, App. 123-25; AR 44, App.

7 (“the Government defined [the Chapter] geographically”) (Solicitor’s opinion).

Next, the characteristics of the people and land in that area must be examined to see

if the area constitutes a “community.” The Supreme Court provides guidance in this respect,

also. In United States v. Mazurie, 419 U.S. 544 (1975), the Court held that demographic

evidence, school enrollment, and the land’s proximity to an Indian housing development and

to BIA and tribal offices showed that the fee land was not part of a non-Indian “community”


5

under 18 U.S.C. § 1154. Id. at 551-52. There is no reason why the word “community” in

18 U.S.C. § 1151(b) should be evaluated differently. Cohen at 194 n.429. The panel

modified the “community of reference” inquiry in light of Venetie and considered indicia

similar to those in Mazurie to determine if the Church Rock Chapter is a cohesive

community. Hydro Resources, 562 F.3d at 1263. In particular, the panel found that 97% of

the Chapter’s residents are Navajos and speak Navajo (most of the other residents are

married into Navajo families, AR 13b, App. 261); the Church Rock community remains

centered on traditional means of earning a living; and the Chapter addresses many of the

health, welfare, and social needs of its residents, all of which show that the Chapter is a

cohesive community. Hydro Resources, 562 F.3d at 1263.

The panel then ensured that the selection of the Chapter as the community of reference

did not artificially fragment a larger community or fuse smaller ones by examining if the

Chapter is a separate society consisting of residences and infrastructure. Id. Consistent with

EPA’s decision, the panel found that residences are organized into traditional family-based

camps or low-cost tribal housing developments; the Chapter has a Head Start center, an

elementary school, several churches, and a host of Chapter, tribal and BIA services and

facilities; the Navajo Nation provides policing, electricity, drinking water, wastewater

treatment, and other utilities; and the United States provides social services, natural resource

and grazing management, housing development, health services, economic development

grants, law enforcement improvement grants, and education grants. Id. at 1263-64. Thus,


6

the Chapter performs similar functions to those typically performed by a county or

municipality. Id. (citing Thriftway Mktg. Corp. v. State, 810 P.2d 349, 352 (N.M. 1990)).

C. Federal Set-Aside of the Church Rock Chapter.

The United States has set aside over 92% of the land in the Chapter for exclusive

Navajo use. Approximately 78% of the Chapter is held in trust for the Navajo Nation or for

individual Navajo tribal members pursuant to the Act of May 29, 1928, ch. 853, 45 Stat. 883,

899-900, or the General Allotment Act. AR 44, App. at 9. Executive Order No. 2513 (Jan.

15, 1917) also set aside land within the Chapter for Navajo use, AR 13b, App. 188-89 (1080

acres in T. 16 N., R. 16 W.), so that trust land comprises 82% of the Chapter area, id. App.

248 ¶ 6. Under a cooperative agreement with the Navajo Nation, the United States

administers other federal land within the Chapter exclusively for Navajo use. See id. ¶ 7.

In sum, approximately 92% of the land is held in trust or otherwise dedicated by the United

States for exclusive Navajo use. As to the small percentage of land there not held in trust for

Navajos, the Secretary has designated the Chapter as part of the Navajo land consolidation

area under 25 U.S.C. § 2203. AR 44 (EPA decision) at 11; AR 13b, App. 132.

The set-aside of such an overwhelming percentage of the Chapter provides substantial

support for the Indian country status of the entire Chapter. See Venetie, 522 U.S. at 531 n.7;

UNC Resources, Inc. v. Benally, 514 F.Supp. 358, 360 (D.N.M. 1981) (“all” of Church Rock

Chapter affected by massive release of radioactive sludge “falls within ‘Indian country’”);

compare Arietta, 436 F.3d at 1249 (3,000 private inholdings in 19 Pueblos); with AR 16, Ex.


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1 (map showing only 6 inholdings in Church Rock Chapter); cf. Solem v. Bartlett, 465 U.S.

463, 480 n.26 (1984) (continued reservation status supported by fact that “only half” of the

lands passed out of Indian ownership).

D. Federal Superintendence of the Church Rock Chapter.

The federal superintendence requirement guarantees that the Indian community is

sufficiently dependent on the federal government so that it and the Indians involved, rather

than the states, are to exercise primary jurisdiction over the land in question. Venetie, 522

U.S. at 531. As the panel ruled, the United States and the tribe need not provide all of the

services and infrastructure. Hydro Resources, 562 F.3d at 1264; Adair, 111 F.3d at 775.

The record fully supports the panel’s conclusion that the United States and the Navajo

Nation provide the lion’s share of services and infrastructure. See AR 44 (EPA decision) at

12-13; id., App. at 10 (Solicitor’s opinion); AR 13b, App. 263, 136-37. The BIA has had an

Agency Office serving the Church Rock Chapter since 1907, and continues to exercise its

traditional trustee role over the Chapter just as it does over the people and the lands of the

Reservation proper. AR 13b, App. 131-33, 204-06. The BIA relates to the residents both

on an individual basis and through the Chapter as a community. Id., App. 132. It provides

law enforcement services, social services, employment assistance, adult education, road

construction and maintenance, real estate services, and personal financial services. Id. The

EPA found on an undisputed record that “[i]n the Church Rock Chapter, the federal

government supervises over 92% of the total area.” AR 44 at 12. It supervises and


8

administers tribal trust land there just as it does land within the reservation proper. AR 13b,

App. 204-06. The allotted trust land is similarly regulated. See, e.g., 25 C.F.R. parts 166,

169, 162, 212. State and local zoning or other regulations do not apply on any trust lands,

25 C.F.R. § 1.4 (2008), and “[i]t is not possible to obtain any interest in trust land or

resources except in compliance with the procedures provided in the federal laws and

regulations.” AR 13b, App. 205. It is unrebutted that the federal Government considers the

Chapter as a “distinct communit[y] of Navajo Indians who depend primarily on federal and

tribal government services and protection.” Id., App. 132 (BIA Superintendent).

Navajo Nation infrastructure and services complement those provided by the United

States. These include a Navajo Police substation, housing assistance, scholarship assistance,

public and youth employment services, emergency relief, a Senior Citizens Center, a

comprehensive Head Start Program, a Community Health Representative, a Veterans

Program, and a Land Board. AR 13b, App. 262. Domestic and livestock water systems,

windmills, wells, and distribution lines are maintained by the Navajo Tribal Utility Authority,

and the Chapter relies on NTUA for potable water for its residents. Id., App. 263; AR 16,

Ex. E at 5. The Chapter relies primarily on the well-respected Navajo Nation Environmental

Protection Agency for environmental protection. AR 13b, App. 263.

III. THE PETITION SHOULD BE DENIED

Rehearing en banc is disfavored and appropriate only if the panel decision conflicts

with a decision of the Supreme Court or the Circuit, or if it concerns an issue of exceptional


9

public importance. Tenth Cir. R. 35.1(A). None of these circumstances is present here.

A. The Panel’s Decision is Consistent with Governing Precedent.

HRI claims that the panel’s decision conflicts with Venetie and with the “implicit

reasoning” of Arietta and United States v. Roberts, 185 F.3d 1125 (10th Cir. 1999), cert.

denied, 529 U.S. 1108 (2000). Pet. at 1-2, 4-7, 10-12. HRI misreads these decisions.

HRI posits that Venetie ushered in a “bright line” test that requires the courts to

undertake a tract-book inquiry and precludes any examination of the area of land actually

constituting the Indian community. As explained above, ANCSA obviated the need for

Venetie to address the community of reference issue. Moreover, far from precluding that

approach, Venetie described the “more relevant factors” as the “degree of federal ownership

of and control over the area, and the extent to which the area was set aside for the use,

occupancy, and protection of dependent Indian peoples.” 522 U.S. at 531 n.7 (emphases

added). The Venetie Court thus did not speak in terms of a bright line test, although it did

not have to decide what degree and extent of federal ownership, control and set-asides would

suffice under ANCSA. See Venetie, 522 U.S. at 532; HRI, 198 F.3d at 1249.

HRI’s construction of 18 U.S.C. § 1151 would read subsection (b) out of that statute,

violating basic rules of statutory construction. HRI contends that each parcel of land within

an Indian community must have affirmatively been set aside by the United States for the

Indians to be part of a dependent Indian community under § 1151(b). But if land is set aside

for an individual Indian, then it is Indian country under § 1151(c), see United States v.


10

Pelican, 232 U.S. 442 (1914), Watchman, 52 F.3d at 1541-42; and if land is set aside for a

tribe, it qualifies as a formal or informal reservation under § 1151(a), see United States v.

John, 437 U.S. 634, 648-49 (1978); Oklahoma Tax Comm’n v. Citizen Band Potawatomi

Indian Tribe, 498 U.S. 505, 511 (1991); Oklahoma Tax Comm’n v. Sac & Fox Nation, 508

U.S. 114, 123 (1993); HRI, 198 F.3d at 1254; Cheyenne-Arapaho Tribes v. Oklahoma, 618

F.2d 665, 668 (10th Cir. 1980). Subsection 1151(b) would be superfluous if land within a

dependent Indian community needed to be federally set aside to qualify as Indian country.

HRI would have the court focus only on its isolated mine site, but that approach would

read the word “community” out of the statute. See Watchman, 52 F.3d at 1544; Cohen at

194. HRI’s approach would also negate almost a century of jurisprudence and related

congressional legislation regarding the Pueblos in New Mexico, whose territory has been

determined to be dependent Indian communities although the core Pueblo lands were never

set aside by the United States and are held in fee simple and although that territory includes

approximately 3,000 federally confirmed non-Indian tracts.

Congress sought to eliminate “tract book” checkerboard jurisdiction when it passed

18 U.S.C. § 1151. Seymour v. Superintendent, 368 U.S. 351, 358 (1962). HRI’s proposed

construction of the statute would “recreate [jurisdictional] confusion Congress specifically

sought to avoid.” Id.; Romero, 142 P.3d at 892-93; Cohen at 191. This outcome would be

particularly harmful in this case, where one governmental entity (the federal EPA) would

have jurisdiction to regulate injections of water for part of a uranium mine (the section 17


11

reservation lands at issue in HRI, 198 F.3d at 1249-54), while another entity (a state agency)

would regulate an adjacent part of the same mine. See Montana v. EPA, 137 F.3d 1135, 1141

(9th Cir.), cert. denied, 525 U.S. 921 (1998).

Finally, the panel’s decision does not conflict with even the “implicit reasoning” of

either Roberts or Arietta. Consistent with longstanding Tenth Circuit law, Roberts held that

land acquired by the United States and held in trust for a tribe for its governmental

headquarters is Indian country under 18 U.S.C. § 1151(a). Roberts, 185 F.3d at 1130-31; see

Cheyenne-Arapaho, 618 F.2d at 668. Roberts considered the issue of whether, after Venetie,

a showing of federal superintendence was required for tribal trust land to be considered

Indian country under § 1151(a), and answered that question in the negative. Thus, there was

no occasion in Roberts for the court to undertake a “community of reference” analysis under

§ 1151(b). 185 F.3d at 1133. And, as did the panel, Arietta refused a party’s invitation to

look only at selected parcels of land in an Indian community, and ruled that “we examine the

entire Indian community, not merely a stretch of road, to ascertain whether the federal set-

aside and federal superintendence requirements are satisfied.” 436 F.3d at 1250.

While Congress in ANCSA eliminated Indian country in Alaska, it has defined Indian

country elsewhere broadly. Sac & Fox, 508 U.S. at 123. To determine whether land is

within a dependent Indian community, Venetie prescribes an inquiry into the extent of federal

ownership and supervision of land. That is precisely the inquiry that the EPA, the Interior

Solicitor, and the panel performed after identifying the proper community.


12

B. There is No Conflict With Other Circuits.

HRI contends that the panel’s decision conflicts with a decision of one other Circuit,

Blunk v. Arizona Dep’t of Trans., 177 F.3d 879 (9th Cir. 1999). The language of Blunk on

which HRI relies is dictum at most, and so does not constitute a conflict between the two

circuits. See ACLU v. Schundler, 168 F.3d 92, 98 n.6 (3d Cir. 1999) (inconsistent dicta in

prior opinion will not constitute a conflict with panel’s holding so as to justify en banc

review). Blunk “concede[d] the land is not Indian country. We need not, therefore,

undertake a dependent Indian communities analysis, the purpose of which is to determine

whether the land is something Blunk already admits it is not.” Blunk, 177 F.3d at 884-85 (B.

Fletcher, J., concurring). Blunk is merely the Ninth Circuit’s version of Buzzard v.

Oklahoma Tax Comm’n, 992 F.2d 1073 (10th Cir. 1993), cert. denied, 510 U.S. 994 (1993),

where this Court held that a tribe’s unilateral purchase of fee lands, with no active federal

involvement and no federal action designating the land for Indian use, does not create

“Indian country,” Blunk having the added feature of the affected tribe affirmatively

disclaiming “Indian country” status of the fee land in question. 177 F.3d at 884. In contrast,

active federal supervision and set-asides of land for exclusive Navajo use characterize the

community here. Hydro Resources, 562 F.3d at 1266-67; AR 44 (EPA decision) at 10-13.

The snippets HRI cites from federal district courts and state courts, typically dealing

with Eastern Indians and special jurisdictional acts pertaining to those tribes, see Pet. at 9-10,

do not create relevant conflicts and certainly do not undermine the precedents of this Court


13

requiring the appropriate community to be defined before applying the set-aside and

superintendence requirements. HRI’s listing of New Mexico state court decisions (Pet. at

10) fails to recognize the central holding of the most recent New Mexico Supreme Court

case, “that the fee land within a § 1151(b) dependent Indian community is Indian country just

like the fee land within a § 1151(a) reservation.” Romero, 142 P.3d at 895. Notably, in

Romero, decided shortly after Arietta, the New Mexico Supreme Court also expressly

rejected the contention that “we should look only to the parcels of private fee land, rather

than the whole pueblo . . .. Instead, we look to the pueblo as a whole and determine if the

pueblo is under federal government superintendence.” Id. at 892. Moreover, Romero limited

to its special facts an earlier case that had rejected the “community of reference” test. Id.

(distinguishing State v. Frank, 52 P.3d 404 (N.M. Sup. Ct. 2002)).

C. HRI’s Fear of a Jurisdictional “Black Hole” Is Unfounded.

HRI’s fear of an expanding tribal jurisdictional “black hole” is unfounded for at least

four reasons. First, this case does not concern tribal jurisdiction at all. It concerns federal

jurisdiction. Tribal authority over non-Indians, even in formal reservations, is governed by

additional tests. Hydro Resources, 562 F.3d at 1265 & n.17; see Montana v. United States,

450 U.S. 544 (1981). Second, the panel’s decision is expressly narrow. Hydro Resources,

562 F.3d at 1266 (“we emphasize that our holding is narrow and restricted to the facts of this

case”). Third, and more generally, this Circuit requires any dependent Indian community

to be defined by objective boundaries, foreclosing indistinct and mutating Indian country


14

boundaries. Id. at 1262; Adair, 111 F.3d at 774.

But the most fundamental misunderstanding reflected in this fear is the assumption

that the Navajo Nation will act as some sort of jurisdictional Pac Man, snapping up as Navajo

Indian country any stray lands that happen to be near its reservation. The Navajo Nation is

no rogue state; it is a federally recognized Indian tribe with respectful relationships with the

States. See United States v. Smiskin, 487 F.3d 1260, 1271 (9th Cir. 2007). Indeed, in two

of the decisions upon which HRI has placed primary reliance, the Navajo Nation was asked

for its position on the Indian country status of certain lands near the reservation: in the first,

the Navajo Nation disavowed any interest in the outcome of the matter, Blunk, 177 F.3d at

884; in the second, the Speaker of the Navajo Nation Council, Lawrence Morgan, testified

that the Navajo Nation did “not exercise any real authority” over the land, United States v.

M.C., 311 F.Supp. 2d 1281, 1286 (D.N.M. 2004). The black hole is a red herring.

D. HRI Presents No Question of Exceptional Importance.

HRI’s contention that this case is exceptionally important is based first on the

mistaken notion that the panel decision deals with tribal, rather than federal, regulatory

authority. Pet. at 12-14. The panel properly limited its review under the Administrative

Procedures Act to the agency decision, which did not advert to Navajo authority in any way.

Hydro Resources, 562 F.3d at 1265 n.17. HRI complains about dictum in Watchman upon

which, HRI contends, the “Panel Decision rests.” Pet. 14. The panel’s decision belies this

contention; it does not quote or rely on this isolated passage, perhaps precisely because this


15

case does not concern tribal authority while Watchman did.

The issue decided by the panel is whether an isolated tract of fee land within an Indian

community may be Indian country in some cases. The panel held, in the narrow

circumstances of this case, that it could. That decision broke no new ground. Non-Indian

inholdings within dependent Indian communities have been determined to be Indian country

by the New Mexico Supreme Court in Romero and by the New Mexico Court of Appeals in

Atcitty. This Court’s reasoning in Arietta compels the same conclusion. 436 F.3d at 1250.

Indeed, the first decision construing 18 U.S.C. § 1151(b), Martine, affirmed a district court

ruling that the off-reservation Ramah Navajo Chapter is a dependent Indian community

notwithstanding its mix of land titles. See Watchman, 52 F.3d at 1543.

Finally, although the State of New Mexico petitioned for review of EPA’s interim

jurisdictional determination in HRI, 198 F.3d at 1230, it did not petition for review of EPA’s

final determination. New Mexico merely urged as amicus curiae that “the EPA

determination, if upheld, should be narrowly construed and that it should have no legal effect

on the State’s other programs.” Amicus Curiae Brief of the State of New Mexico Filed in

Support of No Party (June 19, 2007) at 9. The panel honored New Mexico’s request. 562

F.3d at 1266. Especially because New Mexico did not intervene to contest EPA’s final

decision, any change from that position would be entitled to little deference. See Penobscot

Nation v. Fellencer, 164 F.3d 706, 710-11 (1st Cir.), cert. denied, 527 U.S. 1022 (1999).

IV. CONCLUSION

The Petition should be denied.


s/ Paul E. Frye

Paul E. Frye

FRYE LAW FIRM, P.C.

10400 Academy Rd. #310

Albuquerque, NM 87111

tel.: 505-296-9400

fax: 505-296-9401

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Intervenor-Respondent Navajo Nation’s Response in Opposition to Petition for Rehearing EnBanc was filed with the Court’s electronic filing system, where it is automaticallyprovided to those counsel registered with the system, and also served on counsel ofrecord by placing same in the United States mail, first-class postage prepaid andaddressed and addressed as follows, this 10th day of August, 2009:

Marc D. Flink John J. IndallCasie D. Collignon Comeau, Maldegan, Templeman &Baker & Hostetler Indall, LLP303 E. 17th Street, Suite 1100 141 East Palace AvenueDenver, CO 80203 Santa Fe, NM 87504

David A. Carson Anthony J. ThompsonU.S. Department of Justice Christopher S. PugsleyEnvironment and Natural Resources THOMPSON & SIMMONS, PLLC1961 Stout Street, 8th Floor 1225 19th Street, NW, Suite 300Denver, CO 80294 Washington, D.C. 20036

Christopher D. Coppin Robert W. LawrenceAssistant Attorney General Jonathan William RauchwayState of New Mexico Constance Rogers111 Lomas NW, Suite 300 Davis, Graham & Stubbs, LLPAlbuquerque, NM 87102 1550 Seventeenth St., Suite 500

Denver, CO 80202

s/ Paul E. Frye Paul E. Frye


I certify that all required privacy redactions have been made, and with theexception of those redactions, every document submitted in Digital Form or scannedPDF format is an exact copy of the written document filed with the clerk and thedigital submissions have been scanned for viruses with the most recent version of thevirus scanning program, AVG Anti-virus Free Edition, last update was August 9,2009 and according to the program, is free of viruses.

s/ Norma J. Keranen Norma J. Keranen, Paralegal Frye Law Firm, P.C.10400 Academy N.E., Suite 310Albuquerque, NM 87111Tel: (505) 296-9400


case: 07-9506 document: 01018188549 date filed: 08/10/2009 ... · no. 07-9506 in the united states...

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