Menominee Indian Tribe of Wis v. EPA
947 F.3d 1065
| 7th Cir. | 2020Background
- The Menominee Indian Tribe opposed Aquila Resources’ proposed Back Forty mine along the Menominee River, claiming damage to sacred sites and increased commercial activity.
- Michigan assumed Section 404 (dredge-and-fill) permitting authority in 1984; EPA retains oversight and may object to state-issued permits under the Clean Water Act.
- The Tribe asked EPA and Army Corps to reassess the 1984 delegation (arguing changed circumstances made the river "navigable"), but received brief letters reiterating Michigan’s authority.
- The Tribe sued in federal court under the Administrative Procedure Act; the district court dismissed for lack of a "final agency action" and denied leave to amend; Aquila intervened.
- Separately, Michigan processed Aquila’s Section 404 permit: EPA initially objected, then withdrew objections after revisions; Michigan issued the permit and the Tribe continues to challenge it in Michigan administrative proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EPA/Corps letters were "final agency actions" subject to APA review | Letters refusing to revisit the 1984 delegation were final, arbitrary, and capricious | Letters were informational, restating status quo and imposed no legal consequences | Letters not final agency actions; dismissal affirmed |
| Whether EPA's withdrawal of objections to Michigan's permit is judicially reviewable | Withdrawal lacked explanation and was arbitrary and capricious | Withdrawal is committed to agency discretion and therefore unreviewable under APA §701(a)(2) | Withdrawal committed to agency discretion; claim would be futile |
| Whether NHPA consultation was required | NHPA obligated EPA/Corps to consult with the Tribe about impacts to historic properties | NHPA applies only to federal or federally assisted undertakings; none here | NHPA not triggered because project is privately funded and state-licensed |
| Proper avenue for relief / forum | Tribe sought federal intervention to reassume permitting authority | Defendants point to state permitting, EPA oversight, and available administrative remedies | Tribe must pursue Michigan administrative and state-court review or petition EPA for rulemaking; federal courts lack jurisdiction now |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (1997) (describing final agency action test under APA)
- Heckler v. Chaney, 470 U.S. 821 (1985) (agency enforcement and similar discretionary decisions generally unreviewable)
- Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) (scope of judicial review under the APA)
- Independent Equip. Dealers Ass'n v. EPA, 372 F.3d 420 (D.C. Cir. 2004) (informational letters not final agency actions)
- Clayton County v. Fed. Aviation Admin., 887 F.3d 1262 (11th Cir. 2018) (letters restating positions can be nonfinal)
- American Paper Inst. v. EPA, 890 F.2d 869 (7th Cir. 1989) (EPA objection/waiver authority under Clean Water Act reviewability analysis)
- Save the Bay, Inc. v. EPA, 556 F.2d 1282 (5th Cir. 1977) (EPA nonveto/waiver decisions under CWA committed to agency discretion)
- Seminole Nation v. United States, 316 U.S. 286 (1942) (federal trust responsibility to Indian tribes)
- Tafflin v. Levitt, 493 U.S. 455 (1990) (state courts have concurrent jurisdiction over federal causes of action)