HYDRO RESOURCES, INC., Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, and NAVAJO NATION, Intervenor.
No. 07-9506
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
June 15, 2010
608 F.3d 1131
PUBLISH
STATE OF NEW MEXICO; NATIONAL MINING ASSOCIATION; UNITED NUCLEAR CORPORATION; STATE OF COLORADO; STATE OF KANSAS; STATE OF UTAH; STATE OF WYOMING; THE PUEBLO OF SANTA CLARA; THE PUEBLO OF SANDIA; THE PUEBLO OF ISLETA; and THE PUEBLO OF ZIA, Amici Curiae.
ON PETITION FOR REVIEW OF A FINAL ORDER OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
David A. Carson (Ronald J. Tenpas, Acting Assistant Attorney General, Ignacia S. Moreno, Assistant Attorney General, and John C. Cruden, Deputy Assistant Attorney General, with him on the briefs), United States Department of Justice, Environment and Natural Resources Division, Denver, Colorado, for Respondent.
Paul E. Frye (Louis Denetsosie, Attorney General, and David A. Taylor, Navajo Nation Department of Justice, Window Rock, Arizona, and Jill E. Grant, Nordhaus Law Firm, LLP, Washington, D.C., with him on the briefs), Frye Law Firm, P.C., Albuquerque, New Mexico, for Intervenor.
Gary K. King, Attorney General, and Christopher D. Coppin, Special Assistant Attorney General, Albuquerque, New Mexico, and Justin Miller, Chief Counsel, Office of the Governor, Santa Fe, New Mexico, filed an Amicus Curiae brief for the States of Colorado, Kansas, New Mexico, Utah, and Wyoming.
Anthony J. Thompson and Christopher S. Pugsley, Thompson & Simmons, PLLC, Washington, D.C., filed an Amicus Curiae brief for National Mining Association in support of Petitioner.
Robert W. Lawrence, Jonathan W. Rauchway and Constance L. Rogers, Davis Graham & Stubbs LLP, Denver, Colorado, filed an Amicus Curiae brief for United Nuclear
Gary K. King, Attorney General, and Christopher D. Coppin, Special Assistant Attorney General, Albuquerque, New Mexico; Justin Miller, Chief Counsel, Office of the Governor, Santa Fe, New Mexico; Mark L. Shurtleff, Utah Attorney General, Salt Lake City, Utah; Steve Six, Attorney General of Kansas, Topeka, Kansas; John W. Suthers, Attorney General of Colorado, Denver, Colorado; and Bruce A. Salzburg, Attorney General of Wyoming, Cheyenne, Wyoming, filed an Amicus Curiae brief for the States of Colorado, Kansas, New Mexico, Utah, and Wyoming in support of Petitioner.
Richard W. Hughes, Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu, LLP, Santa Fe, New Mexico, and David C. Mielke, Sonosky, Chambers, Sachse, Mielke & Brownell, Albuquerque, New Mexico, filed an Amici Curiae brief for Pueblos of Santa Clara, Sandia, Isleta and Zia in support of Respondent.
Before BRISCOE, Chief Judge, EBEL, TACHA, KELLY, HENRY, LUCERO, MURPHY, O‘BRIEN, TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges.
GORSUCH, Circuit Judge, joined by TACHA, KELLY, O‘BRIEN, TYMKOVICH, and HOLMES, Circuit Judges.
Everyone agrees that Hydro Resources, Inc. (“HRI“) must obtain a Safe Drinking Water Act (“SDWA” or “the Act“) permit to mine its property. The only question is: from whom? The Environmental Protection Agency (“EPA” or the “Agency“), which administers the Act, has chosen to delegate its permitting authority in the State of New Mexico to the New Mexico Environment Department (“NMED“), but with one exception: EPA has not delegated its authority to issue permits for mining activities on “Indian lands.” Thinking its land hardly qualified as “Indian land” — HRI owns its property in fee, it pays county real estate taxes, the land is uninhabited, and it is not inside any Indian reservation or otherwise set aside and superintended for Indian use — the company proceeded to apply for, and obtain, a permit from NMED. Initially, EPA professed no quarrel with this, and it has never questioned NMED‘s administration of the Act. But eventually a dispute broke out over the status of HRI‘s land and, after years of regulatory wrangling, EPA issued a “final land status determination” expressing its judgment that HRI‘s land qualifies as “Indian land.” As a result, EPA ruled, HRI must seek and obtain its SDWA permit from it rather than NMED.
How did EPA reach this conclusion? By regulation, EPA chose to define the term “Indian lands” — the only lands for which it did not cede primary permitting authority to NMED — to be synonymous with “Indian country,” as that term is defined by
But whatever HRI‘s land is, it can‘t be that. In Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998), the Supreme Court identified two “requirements” of all “dependent Indian communities” under
Despite this, EPA argued before a panel of this court that we should cast our gaze beyond the particular land in question. In the Agency‘s view, because some sufficiently significant (though unspecified) percentage of neighboring lands — what EPA calls “the community of reference” — is Indian country, HRI‘s land must be considered Indian country, too. In defense of its view, EPA pointed to certain of this circuit‘s cases, most pre-Venetie, suggesting the approach it took. Deeming itself bound by the same authority, a panel of this court upheld EPA‘s classification of HRI‘s land as Indian country. Hydro Res., Inc. v. U.S. EPA, 562 F.3d 1249 (10th Cir. 2009) (“HRI II“).
HRI responded to all this with a petition for en banc review. The company argued that the “community of reference” approach advanced by EPA and certain of this circuit‘s cases is inconsistent with Venetie. HRI submitted, too, that our cases are in conflict with each other — while some follow EPA‘s approach, others after Venetie have abjured the “community of reference” test, as have decisions in our sister circuits. Seeking to sort all this out, we granted HRI‘s request for en banc review.
Having now heard the case anew, we find ourselves compelled to vacate EPA‘s final land status determination. EPA‘s interpretation cannot be reconciled with the Supreme Court‘s explanation of
None of this is to say that EPA must tether its SDWA permitting authority to a statute defining the scope of the federal government‘s criminal jurisdiction over Indian lands. Had EPA chosen to define its authority under the SDWA in a different way, the result in this case might have been different. But we decide the cases as they come to us. And in this case, heeding the Supreme Court‘s commands in Venetie requires us to grant HRI‘s petition for review and vacate the Agency‘s final land status determination.
I
The history of this dispute is long and tangled. Even so, some appreciation of its twists and turns is essential. We begin by examining briefly the history of the land in question (Section I.A), the regulatory scheme governing that land and the parties before us (Section I.B), the parties’ first lawsuit before this court (Section I.C), its subsequent remand to EPA (Section I.D), and the current appeal (Section I.E), all before we turn to address our jurisdiction and standard of review (Section II) and, at last, the merits of this appeal (Section III).
A
The land at issue in this case lies in what is commonly known as the “checkerboard” region of northwestern New Mexico. See generally Pittsburg & Midway Coal Min. Co. v. Yazzie, 909 F.2d 1387, 1389-92 (10th Cir. 1990). This region abuts the southern and eastern boundaries of the Navajo Reservation originally created by an 1868 treaty between the United States and the Navajos. Id. at 1389. And a checkerboard it is, marked by alternating parcels of land owned by the state, the federal government, the Navajo Nation, individual Navajos, and private persons and entities. See id. at 1423 app. A (map section marked “J“); Appendix.1
The checkerboard seems to have had its start with the railroad. In the late nineteenth century, the federal government granted certain lands in the region to railroad companies in an effort to induce construction. “These grants typically consisted of alternating one-mile-square parcels on each side of the planned line for the railroad tracks . . . .” HRI II, 562 F.3d at 1254 n.3. From this, a checkerboard was born, aided and abetted by the fact that other tracts of land in this area, though still formally held in the public domain, were occupied by Navajos, while still others were being rapidly snapped up by white and Mexican settlers. Yazzie, 909 F.2d at 1390.
And this was just the start of the complications. As Judge Anderson explained in his thorough history of the area, by the turn of the twentieth century federal officials became concerned that the new settlers were “appropriating the limited water holes for themselves.” Id. at 1390. So, in an effort to protect the Navajo population, President Theodore Roosevelt signed two executive orders, E.O. 709 and E.O. 744, in 1907 and 1908, respectively. The combined effect of these orders was to add much of the land in this area to the Navajo Reservation. Id. at 1391. At the same time, the President‘s orders expressly preserved preexisting private property rights, including the railroad land grants. Thus, “the extension to the Reservation” further complicated the variegated character of the area. Id. at 1391 n.6.
Still more checkerboarding followed. It seems the government did not intend the area to become a permanent addition to the Reservation. See id. Instead, the plan apparently was to allow Indians2 then living in the area a brief period to claim and “receive 160-acre allotments in severalty without interference from whites and Mexican stockmen.” Id. at 1390. After that, any unallotted land was to revert from reservation status back to the public domain. See id. And this is exactly what transpired in 1911 by virtue of another executive order, this one issued by President Taft. Id. at 1392. Since then, land in this area has changed hands many times in still more complicating ways. In 1928, for example, Congress appropriated funds for the purchase of some privately held former railroad tracts in order that they might be held by the federal government for the benefit of the Navajo. HRI II, 562 F.3d at 1254 n.3. Meanwhile, other parcels now belong to the New Mexico state government or remain in the hands of non-Indians.
HRI‘s land falls into this final category. In 1970, the federal government sold 160
16W, to the United Nuclear Corporation. See Appendix. In turn, United Nuclear later sold the land to HRI. There are no inhabitants on HRI‘s land. Except for the brief period from 1907-11, it has not been set aside by Congress for Indians or placed under federal superintendence for their benefit. The remaining three quadrants of Section 8 land not owned by HRI are still owned in fee by the United States. R. 15c App. XI at para. 3. Other adjacent sections include parcels held in trust for the Navajo by the United States (Sections 9 and 17) and land owned by the State of New Mexico (Section 16). See Appendix.
Section 8 lies within McKinley County, New Mexico. The county seat resides in the city of Gallup, “approximately 11 miles southwest of the Section 8 land.” HRI II, 562 F.3d at 1254. The state and county exercise jurisdiction over private lands throughout the checkerboard area. So, for example, the State of New Mexico maintains the only road access to Section 8, State Highway 566, while McKinley County shares responsibility with the federal government for other roads in the vicinity. HRI II, 562 F.3d at 1254. The County provides essential public services to private lands like HRI‘s, including fire, police, and emergency services. Id. The Gallup/McKinley County public school system offers public education and school transportation for those in the area. Id. And HRI pays annual property taxes on its land to McKinley County. Id.
Section 8 also falls within the boundaries of the Navajo Church Rock Chapter. The Chapter is a political and social unit of the Navajo Nation, with its boundaries and membership determined by the Tribe. See id. at 1255.3 The current boundaries as drawn by the Tribe include tracts owned in fee by the United States, privately held lands, and Navajo Nation lands. Id. At the same time, the Chapter‘s boundaries exclude at least one parcel of state land, Red Rock State Park, thus creating a sort of “doughnut hole” in the middle of the Chapter. See Appendix. While most of the land in the Chapter lies north of Interstate 40, the Chapter does include a narrow traverse across the Interstate and a small tract on the highway‘s south side. See id.
The political and social center of the Church Rock Chapter is the Chapter House, located in the village of Church Rock, six miles east of Gallup and about six miles south of Section 8. See id. Much of the membership of the Chapter lives in close proximity to the Chapter House, and Chapter members typically visit the Chapter House at least once a month for meetings and social activities and services. R. 40 at B-29. At the same time, nearly half
B
After purchasing its Section 8 land, HRI sought to mine it for uranium. In preparation, the company obtained various regulatory permits. Because HRI‘s proposed mining operations contemplated the use of an underground injection system to extract the ore, SDWA regulations required the company to obtain approval of an underground injection control (“UIC“) plan aimed at mitigating the risk of contamination to potential drinking water sources.4
While EPA is responsible for administering the SDWA, Congress anticipated that the states would, at least sometimes, serve as the primary entities responsible for reviewing and granting or denying UIC permits. In the SDWA, Congress told EPA it could “either approve, disapprove, or approve in part and disapprove in part, [each] State‘s” application to become the primary UIC permitting authority.
with respect to underground injection wells “on Indian lands.”
It is here the real regulatory complications begin. How do we know when underground injection wells lie on “Indian lands“? By regulation, EPA has chosen to define the phrase “Indian lands,” when it appears in SDWA regulations, to mean “Indian country,” as that term is defined by
(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation,
(b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and
(c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.
Having thus defined the scope of “Indian lands” under its SDWA regulations, EPA still faced the question: Who, if not the state, should enjoy primary authority to regulate wells on those lands? The SDWA entrusts primary UIC permitting authority to EPA but allows the Agency to delegate that authority to tribes, much as it does to states, at least with respect to permit applications “within the area of the Tribal Government‘s jurisdiction.”
In 1994, EPA chose to exercise this authority to delegate primary UIC permitting authority to the Navajo Nation for lands within the Navajo Reservation, as well as for certain other Navajo allotments and Navajo fee lands. HRI, Inc. v. EPA, 198 F.3d 1224, 1232 (10th Cir. 2000) (“HRI I“). At the same time, however, EPA declined to approve the Tribe‘s application to assume primary UIC permitting authority over all privately held fee lands in the checkerboard region where Section 8 resides. Id. at 1233. It was and is undisputed that these lands do not qualify as part of any Indian reservation within the meaning of
until such time as the Tribe could come forward with evidence showing that the “particular parcel of land” in question qualified as Indian country under
It is perhaps unsurprising that such a complex land ownership scheme, overlaid by such a complex regulatory scheme, might beget equally complex litigation. And so it did when HRI tried to ascertain which regulatory authority held the UIC permit it needed. HRI knew that the Tribe didn‘t have permitting authority over its land, at least not yet. The remaining choices HRI thus confronted were EPA or NMED. Not conceiving of its land as part of a “dependent Indian community” within the meaning of
As part of the permitting process, NMED sought from EPA a mandatory “aquifer exemption” for HRI‘s mining activities, because those activities contemplated the introduction of contaminants into an aquifer. Generally speaking, the SDWA prohibits contamination of underground aquifers. See
requirements.” HRI I, 198 F.3d at 1233. In due course, EPA approved NMED‘s requested exemption because, in EPA‘s judgment, the aquifer under HRI‘s land “does not currently serve as a source of drinking water” and “cannot now and will not in the future serve as a source of drinking water.”
About this time, however, a jurisdictional dispute arose regarding HRI‘s planned mining operations on Section 8 and on nearby Section 17. The dispute proved protracted as state, federal, and tribal authorities wrangled over whether HRI‘s UIC operations should be regulated by NMED or EPA. See HRI I, 198 F.3d at 1234-35. At some point during this back-and-forth, the Navajo Nation presented what EPA considered to be “substantial arguments to support its claim that Section 8 is within Indian country.” Id. at 1235 (quoting EPA opinion letter of July 14, 1997). Based on these assertions, EPA deemed Section 8‘s Indian-land status to be “in dispute.” Id.
Eventually, in the late 1990s, HRI and NMED sought review of EPA‘s assessment in this court. HRI argued that its Section 8 land wasn‘t a “dependent Indian community” within the meaning of
permitting authority rested with NMED, not EPA or the Tribe.6 For its part, EPA asked the court to remand the matter because it still hadn‘t reached a final decision on the question of Section 8‘s status as Indian country. See HRI I, 198 F.3d at 1236 n.6 (quoting EPA Brief). EPA explained its delay by pointing to the Supreme Court‘s then-recent decision in Venetie, which indicated
below with the Venetie standard in mind.” HRI I, 198 F.3d at 1236 n.6 (quoting EPA Brief at 47).
Shortly before Venetie, this court in 1995 developed a two-step, multivariable balancing test for identifying “dependent Indian communities” under
entities “provide infrastructure, government, essential services, and employment” for the community. Adair, 111 F.3d at 775.
All of this, however, was just the beginning. Having identified a “community of reference,” our test then sought, at the “second step,” to determine whether that community qualified as a dependent Indian community. And this, we said, required the balancing of still more factors: “(1) whether the United States has retained title to the lands which it permits the Indians to occupy and authority to enact regulations and protective laws respecting this territory; (2) the nature of the area in question, the relationship of the inhabitants in the area to Indian tribes and to the federal government, and the established practice of government agencies toward the area; (3) whether there is an element of cohesiveness manifested either by economic pursuits in the area, common interests, or needs of the inhabitants as supplied by that locality; and (4) whether such lands have been set apart for the use, occupancy and protection of dependent Indian peoples.” Watchman, 52 F.3d at 1545 (internal quotation marks and alterations omitted). Only the first and fourth of these elements, however, added entirely new concepts to the mix; the second and third elements overlapped in significant measure with elements of the antecedent “community of reference” analysis. Even so, Watchman instructed the use of these elements at both steps in the analysis and held that, if both steps were satisfied, all land inside the “community of reference” qualified as “Indian country.” See id.
D
With that for guidance, EPA on remand proceeded to invite comments from interested parties. Ultimately, the Agency received comments from the State of New Mexico, McKinley County, various corporations, and more than one hundred Navajo allottees arguing that HRI‘s Section 8 land should not be considered part of a dependent Indian community. At the same time, the Agency received comments from the Navajo Nation, the Navajo Church Rock Chapter, and many others arguing that the land should be considered Indian country. In addition to all this, EPA consulted the Interior Department‘s Solicitor‘s Office and the Navajo Nation.
At the end of its review, the Agency acknowledged that “[s]everal commenters have suggested that the community-of-reference analysis is no longer intact.” EPA Land Status Determination, R. 44 at 4. Yet, seeming to take its cue from HRI I‘s intimation that Venetie had not spoken “directly” to Watchman‘s threshold community of reference test, EPA concluded that the test survived Venetie — at least in the Tenth Circuit, if not elsewhere. Id. At the same time, the Agency decided that Venetie modified Watchman‘s second step, replacing its four-part test with a two-part test focused on how much of the “community of reference” is set aside for Indians and federally superintended. If some sufficiently high, though unspecified, percentage of the “community of reference” met these requirements, EPA would treat all land within the community of reference as Indian country under
Turning to apply its understanding of
After having identified what it considered to be the appropriate community of reference, EPA then applied Venetie‘s set-aside and federal superintendence requirements to that community. While HRI‘s Section 8 land itself was indisputably neither set aside for Indian use nor federally superintended, EPA reasoned that all of Church Rock Chapter is Indian country because a sufficiently high percentage of the land within its boundaries are set aside for Indian use and federally superintended.
E
Again HRI petitioned this court for review. The company argued, much as it had in HRI I, that Venetie abrogated the Watchman test on which EPA relied in justifying and conducting its threshold “community of reference” inquiry. In HRI‘s view, Venetie said that
The panel, considering itself constrained by HRI I‘s suggestion that Watchman‘s community of reference test survived Venetie, rejected HRI‘s argument and upheld the agency‘s final land status determination. HRI II, 562 F.3d at 1261. Judge Frizzell, sitting by designation, dissented in part. He questioned whether Section 8 is fairly included within the Church Rock community of reference, given that it is uninhabited and isolated land that the Chapter has deemed “incapable of sustaining a community.” HRI II, 562 F.3d at 1269 (Frizzell, J., concurring in part and dissenting in part). Judge Frizzell also questioned the community of reference test, noting that “[a]s long as a Chapter as a whole satisfies whatever percentage of federal set-aside and supervision a federal court deems necessary, tribal law may itself define the boundaries of Indian country outside” reservations. Id. at 1270-71. Through this application “of our community of reference test,” Judge Frizzell emphasized, “we take an unprecedented step. Never before has non-Indian fee land outside the exterior boundaries of a reservation or Pueblo been held to be a dependent Indian community.” Id. at 1270.
After the panel issued its decision, HRI petitioned for rehearing en banc, asking us to tackle the one issue the panel thought it could not — whether Watchman‘s community of reference test remains an appropriate part of
Before we can address the merits of this dispute, we must first attend to antecedent questions about our subject matter jurisdiction (Section II.A) and standard of review (Section II.B).
A
Federal courts do not wield plenary jurisdiction over every slight or suit. Instead, our authority is restricted in ways small and large by constitutional and statutory design. Because of this, the task of ensuring ourselves of our own subject matter jurisdiction “is not a mere nicety of legal metaphysics,” but essential to the rule of law in “a free society . . . . The courts, no less than the political branches of government, must respect the limits of their authority.” U.S. Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 77 (1988); see also In re C & M Properties, L.L.C., 563 F.3d 1156, 1161 (10th Cir. 2009).
Before the panel, EPA challenged HRI‘s standing under
Under
Before us, EPA has disputed only the first element — injury in fact.8 The Agency‘s challenge, however, cannot succeed. Even if, as EPA would apparently have us assume, its UIC permitting process is no stricter than New Mexico‘s, the panel opinion in this case correctly explained that “the outlay of funds necessary to secure” a second UIC permit from EPA, on top of the one HRI has already secured from NMED, amply qualifies as a concrete and particularized, actual and imminent injury. HRI II, 562 F.3d at 1259. As we have previously explained, “the out-of-pocket cost to a business of obeying a
B
Assured of HRI‘s constitutional standing to bring this appeal, before reaching the merits it remains to ask whether and to what degree we are statutorily empowered to review EPA‘s decision.
The SDWA authorizes us to review “final actions” taken by EPA in its administration of the statute.
It is this last phrase — “otherwise not in accordance with law” — most directly at issue here. See FCC v. NextWave Pers. Commc‘ns Inc., 537 U.S. 293, 300 (2003) (“The Administrative Procedure Act requires federal courts to set aside agency action that is ‘not in accordance with law’ — which means, of course, any law, and not merely those laws that the agency itself is charged with administering.” (citation omitted)). EPA‘s final land status determination represents the Agency‘s interpretation of its earlier regulations affording NMED primary authority to regulate UIC wells in New Mexico “except on Indian lands,”
Of course, courts afford considerable deference to agencies interpreting ambiguities in statutes that Congress has delegated to their care, see Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), including statutory ambiguities affecting
The principal dissent agrees that EPA is not entitled to Chevron deference, but argues that the Agency deserves Skidmore deference. Principal Dissent at 5 n.2. Of course, an agency‘s interpretation of a statute merits deference under Skidmore only in “proportion[] to its ‘power to persuade.‘” United States v. Mead Corp., 533 U.S. 218, 235 (2001) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)); see also id. at 250 (Scalia, J., dissenting) (Skidmore deference is a “statement of the obvious: A judge should take into account the well-considered views of expert observers.“). Whether or not Skidmore compels us to do so, we certainly seek in this opinion to take into account EPA‘s considered views. But we decline to decide the question whether we are obliged by Skidmore to afford even this modicum of deference, for a few reasons. First, EPA has not sought Skidmore deference, and when a party chooses not to pursue a legal theory
III
With this much resolved, we finally reach the merits. The dispute here is a purely legal one: Does the Watchman community of reference test remain viable following the Supreme Court‘s decision in Venetie? EPA argues it does; HRI says it does not.
EPA reads
Having balanced all these competing considerations to identify some “community of reference,” EPA moves to the second Watchman step, which it does view as modified by Venetie. Before Venetie, the Watchman test sought to determine whether a community of reference qualified as a dependent Indian community by considering four factors: (1) whether and to what degree the United States has retained title to the lands in the community, (2) the nature of the area and the relationship of the inhabitants in the area to Indian tribes and to the federal government, (3) whether there is “an element of cohesiveness . . . manifested either by economic pursuits in the area, common interests, or needs of the inhabitants as supplied by that locality“; and (4) “whether such lands have been set apart for the use, occupancy and protection of dependent Indian peoples.” Watchman, 52 F.3d at 1545. EPA suggests that, after Venetie, the second and third of these factors are no longer operative, and that the first and fourth essentially track Venetie‘s set-aside and
For its part, HRI submits that Venetie leaves no room for EPA‘s reading of
We are constrained to agree with HRI. We hold that Watchman‘s community of reference test did not survive Venetie and that dependent Indian communities under
A
In Venetie, the Supreme Court explained that “dependent Indian communities” under
What does it mean for the federal government to set aside land for Indian use and to superintend it? The Court noted that the set-aside requirement means that there must be “some explicit action by Congress (or the Executive, acting under delegated authority) . . . to create or to recognize” the “land in question” as part of a federally recognized and dependent Indian community. 522 U.S. at 531 n.6. Through an Act of Congress or some equally explicit executive action, then, the federal government must identify the land as ”set apart for the use of the Indians as such.” Id. at 529 (internal quotation marks omitted)
The set-aside and superintendence requirements, the Court explained, derive from the statute‘s plain language — “dependent Indian communities.” The set-aside requirement “ensures that the land in question is occupied by an ‘Indian community.‘” Id. at 531. That is, the boundaries of the Indian community are demarcated by and delimited to those lands that are explicitly set aside by legislation or executive action for Indian use. The federal superintendence requirement “guarantees that the Indian community is sufficiently ‘dependent’ on the Federal Government that the Federal Government and the Indians involved, rather than the States, are to exercise primary jurisdiction over the land in question.” Id.
In our case, it is undisputed that HRI‘s Section 8 land hasn‘t been explicitly set aside by Congress (or the Executive) for Indian use since the brief period when it was appended to the Navajo Reservation nearly a century ago. See supra Section I.A. It is likewise undisputed that the land isn‘t under federal superintendence, and hasn‘t been since the government sold it in 1970. See id. McKinley County and the State of New Mexico provide all essential public services to HRI‘s Section 8 land, including roads, law enforcement, and emergency and school services. The Navajo Church Rock Chapter recognizes that private lands within its boundaries, like HRI‘s, are subject to state jurisdiction and control. And state authorities have long assessed tax on HRI‘s property. Under Venetie‘s interpretation of
Of course, EPA seeks to avoid just this conclusion by expanding the focus from HRI‘s particular tract to a wider “community of reference.” According to the Agency, only after ascertaining some appropriate community of reference, by balancing various social, political, and geographic factors, should one then turn to the questions prescribed by the Supreme Court in Venetie, asking whether some significant percentage of the community of reference is set aside for Indian use and federally superintended.
This misreads Venetie. The Supreme Court did not direct its set-aside and superintendence inquiries toward some abstract “community of reference.” Instead, the Court told us (repeatedly) to ask whether the “land in question” is explicitly set aside for Indian use and federally superintended. See, e.g., Venetie, 522 U.S. at 530, 531, 533. Before us, the only land in question in EPA‘s challenged final land status determination is HRI‘s segment of Section 8. And so
it is only that land that is subject to, and the focus of, Venetie‘s set-aside and superintendence requirements.Tellingly, EPA adopted just this approach to
Of course, EPA now tells us that focusing narrowly on the status of the “land in question” fails to give full vent to the statutory term “communities.” The Agency stresses that
This, too, is in error. The Venetie Court did address the term “community,” and did so in light of the statutory terms modifying it. The Court expressly held that “dependent Indian communities” are composed of those lands Congress (or the Executive, by delegation) has explicitly set aside and superintended for Indian use. As the Court clearly explained, “[t]he federal set-aside requirement ensures that the land in question is occupied by an ’Indian community.‘” Venetie, 522 U.S. at 531 (emphasis added). And the federal superintendence requirement, the Court emphasized, “guarantees that the Indian community is,” in turn, “sufficiently ‘dependent’ on the Federal Government that” it should be subject primarily to federal, not state, jurisdiction. Id. (emphasis added).
In adopting the approach it did, moreover, the Court rejected the idea that the boundaries of a federally dependent Indian community should be determined by a sort of judicially administered census study of the nature of “the Indian tribe inhabiting” the area. Id. at 530 n.5. The right question, the Court held, is instead whether Congress has taken some action to designate and maintain the land in question for Indian use. It is Congress‘s action alone that demarcates the boundaries of a dependent Indian community. Id.; see also United States v. McGowan, 302 U.S. 535, 538 (1938) (“Congress alone has the right to determine the manner in which this country‘s guardianship over the Indians shall be carried out.“); cf. Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 586 (1977) (“In determining whether . . . Reservation boundaries were subsequently diminished[,] . . . [t]he underlying premise is that congressional intent will control.“).
In this way, the Court explained, the federal set-aside and superintendence requirements respect and give meaning to an important feature of our constitutional order — namely, “the fact that because Congress has plenary power over Indian affairs, see
Simply put, Venetie held that Congress — not the courts, not the states, not the Indian tribes — gets to say what land is Indian country subject to federal jurisdiction. It is long settled that Congress does so by declaring land to be part of a reservation, or by authorizing its distribution as Indian allotments. And so it is the case that Congress must take some equally “explicit action . . . to create or to recognize” dependent Indian communities. Id. When seeking to identify a
Applying these principles in Venetie, the Supreme Court held that none of the 1.8 million acres of land granted by Congress in fee to the Neets‘aii Gwich‘in Indians in Alaska constituted a
In this same way, the community of reference test also disregards and regularly overrides Congress‘s plenary authority in charting the extent of Indian country. Applying the test here, EPA held HRI‘s land to be Indian country even though Congress has not explicitly set aside the land for Indian use and the most recent federal action with respect to this land was an executive order in 1911 removing it from Indian country. See supra Section I.A. It seems to us that, just as in Venetie, there could be “no clearer fashion” in which the federal government could have extinguished the Indian country status of HRI‘s land. Venetie, 522 U.S. at 532.
By disregarding Congress‘s authority, the community of reference test contemplates the possibility that even land never set aside by Congress for Indians can become Indian country simply because of its proximity to other lands that are federally set aside and superintended. This is so despite the fact that neither EPA nor the principal dissent has pointed us to a single case in the history of the Supreme Court or this court reaching such a result. Consider what happens when a tribe unilaterally redefines its borders to take in just a
Neither does the community of reference test‘s disregard for Congress‘s authority work only to expand Indian communities. It can operate just as well the other way around — and would surely do so increasingly as time wears on and non-Indian communities encroach on Indian lands. What would happen, for example, if Gallup grows and dilutes adjacent Indian populations, so that the Chapter might no longer be said to constitute its own independent “mini-society,” but only part of a greater Gallup “community of reference“? Presuming that this new greater Gallup community of reference wouldn‘t include a sufficient percentage of set-aside and superintended land, no land within its limits would constitute “Indian country” under
Any remaining question about the vitality of Watchman‘s community of reference test is answered by the fact that it would require us to revive the same factors the Supreme Court rejected in Venetie. Before the case reached the Supreme Court, the Ninth Circuit looked to this circuit‘s
As we have noted previously, many of the same factors appear in both steps of the Watchman analysis. See supra Section I.C. And the three specific factors the Supreme Court held impermissible in Venetie are among these reappearing factors. Put more pointedly, the factors Venetie expressly rejected are found not just in Watchman‘s second step; they also form the backbone of Watchman‘s first step: defining the community of reference. For example, considering the “status of the area in question,” as EPA did in its community of reference analysis, Land Status Determination at 5, is no different from looking at the “nature of the area,” a consideration the Supreme Court rejected in Venetie, 522 U.S. at 531 n.7. Searching for “the existence of an element of cohesiveness,” as EPA did, Land Status Determination at 5, is indistinguishable from seeking to discern “the degree of cohesiveness of the area inhabitants,” which the Supreme Court held impermissible. Venetie, 522 U.S. at 531 n.7. And focusing “on which government or governments provide the infrastructure and essential services for the community,” as EPA would have us do, Land Status Determination at 6, necessarily requires consideration of “the relationship of the area inhabitants to Indian tribes and the federal government,” again something Venetie ruled out-of-bounds. Id. at 531 n.7. In EPA‘s application of Watchman‘s community of reference test, then, the three factors Venetie discredited reemerge, like a phoenix, from their own demise. And in some ways, the community of reference test favored by EPA is even more problematic than the Ninth Circuit‘s approach. At least in the Ninth Circuit‘s test the three factors rejected by the Supreme Court were balanced in fair competition against the set-aside and superintendence requirements. In EPA‘s application of Watchman‘s community of reference test, the rejected factors actually receive a promotion to an outcome-determinative threshold inquiry. The Agency offers us no credible explanation how we might lawfully revive, and then elevate, the very same factors the Supreme Court has expressly rejected.17
The Venetie Court didn‘t create its
An examination of these precedents, the soil in which
McGowan is to the same effect. The case arose when the United States sought the forfeiture of two automobiles used to introduce alcohol into the Reno Indian Colony, which consisted of a single tract of land bought and owned by the federal government as a “permanent settlement” for “needy Indians scattered over the State of Nevada.” McGowan, 302 U.S. at 537. The question presented to the Court was whether the Colony constituted “Indian country” under the same criminal statute at issue in Sandoval. The Court concluded that the Colony, while neither a reservation nor an allotment, constituted a “dependent Indian communit[y],” id. at 538, because all of
Nothing in Sandoval or McGowan suggests that the metes and bounds of “dependent Indian communities” should be determined by a court‘s perceptions about local social, political, or geographic affinities. Rather, in both cases, the Supreme Court identified “dependent Indian communities” based on congressional intent, as expressed in independent statutory declarations. Both decisions emphasized that “the questions whether, to what extent, and for what time [Indians] shall be recognized and dealt with as dependent tribes requiring the guardianship and protection of the United States are to be determined by Congress, and not by the courts.” Sandoval, 231 U.S. at 46 (emphasis added); see also McGowan, 302 U.S. at 538 & n.9 (citing Sandoval, 231 U.S. at 46). And both explained Congress must express its intent to make land a “dependent Indian community” by explicitly setting aside the land for Indian use and authorizing the federal government to superintend the land for that purpose. Cf. Felix S. Cohen‘s Handbook of Federal Indian Law, Ch. 1, § 3 at 7 (Robert L. Bennett & Frederick M. Hart eds., 1971) (reprinting original 1942 edition) (hereinafter “Cohen (1942)“) (summarizing Sandoval as explaining “that the term Indian country as applied to the Pueblos means any lands occupied by ‘distinctly Indian communities’ recognized and treated by the Government as ‘dependent communities’ entitled to its protection“).
Venetie, thus, is nothing new under the sun. It simply reaffirms what the Supreme Court has always held to be the case: the dependent Indian community inquiry centers on whether Congress (or the Executive, by delegation) has taken some explicit action to set aside the land in question for Indian use and whether the land remains federally superintended. As always, we do well to follow the Supreme Court‘s guidance — most especially when that guidance has received the blessing of Congress through codification. Yet, EPA (like the dissents) makes no attempt to grapple with any of
Though not dispositive to our analysis, it also merits noting that the historic meaning of the statute recently received further congressional confirmation. Seeking to salve a dispute over the status of privately held lands within New Mexico pueblos, Congress passed the Indian Pueblo Land
C
The structure of
EPA attempts to overcome this by arguing that
In truth, Congress has authorized some degree of checkerboard jurisdiction in all three
Checkerboarding
While no interpretation of
One glance at a map of the Church Rock Chapter confirms as much. See Appendix. The Chapter includes within its boundaries a narrow jog across Interstate 40 and a small chunk of land south of the highway. And there it includes a long strip of private fee lands along the Chapter‘s southeastern boundary, yet (without explanation) not other immediately adjacent private fee lands. At the same time, in the center of the Chapter lies Red Rock State Park, which the Chapter excludes from its boundaries, creating a sort of doughnut hole (and raising the perplexing question: to what — noncontiguous — “community of reference” might the park belong?). If that weren‘t enough, and seemingly at odds with the exclusion of this particular piece of state-owned property, the Chapter purports (again without explanation)
Worse still, the community of reference test creates multiple, unpredictable, and shifting checkerboards — and does so in the context of a criminal statute, in tension with the “basic principle” of due process “that a criminal statute must give fair warning of the conduct that it makes a crime.” Bouie v. City of Columbia, 378 U.S. 347, 350 (1964); cf. Flores-Figueroa v. United States, 129 S. Ct. 1886, 1895 (2009) (Scalia, J., concurring in part and concurring in the judgment) (calling expansions of criminal liability based on factors outside the statute‘s text “not unlike the practice of Caligula, who reportedly wrote his laws in a very small character, and hung them up upon high pillars, the more effectually to ensnare the people” (internal quotation marks omitted)).
The Supreme Court has repeatedly warned us against the “judicial expansion of narrow and precise statutory language” in the criminal context because “a deprivation of the right of fair warning can result not only from vague statutory language but also from an unforeseeable and retroactive judicial expansion” of statutes. Bouie, 378 U.S. at 352.22 This is a principle we cannot help but bear in mind even here, in a civil case. It remains, after all, a criminal statute we are expounding. And this is no mere “technical[ity]” or “hypothetical.” Principal Dissent at 7; Separate Dissent at 4. Though EPA has chosen, for now at least, to link its SDWA permitting authority to the scope of a criminal statute, it may not have to live with this regulatory decision forever. Our interpretation of the statute, meanwhile, will apply to all criminal cases arising under
Venetie supplies a test that is consistent with the statute‘s meaning, history, and structure; and asking whether a piece of land has been explicitly set aside for Indian use and is federally superintended is a reasonably precise and clear task. The community of reference test, by contrast, is anything but these things. Consider the couple who pops a bottle of champagne to celebrate their vacation on private land in New Mexico that is neither set aside nor superintended for Indians. Say it turns out that the land beneath their picnic blanket is within the political boundaries a Navajo Chapter has asserted for itself. Has the couple just committed a federal offense by introducing alcohol into a dependent Indian community? See
The case before us illustrates just how hard all that guessing can be. EPA determined that the appropriate community of reference in this case was the Church Rock Chapter, despite evidence that most of the Chapter‘s residents work in Gallup; most services and infrastructure are provided by the city, county, or state; the entire area around Section 8 is uninhabited and, in the Chapter‘s words, “not suitable for community . . . development“; and EPA itself has concluded that no community is ever likely to use the aquifer under HRI‘s land as a source of drinking water. On a record like this, it seems one might just as easily have determined that the “appropriate” community of reference was larger than the Chapter, perhaps embracing Gallup or all of McKinley County. Or, perhaps just as plausible, an area smaller than the Chapter, comprising only those outlying “rugged mountain ranges, canyons, and highlands” that the Chapter has indicated aren‘t suitable for development. See HRI II, 562 F.3d at 1269 (Frizzell, J., dissenting). Or perhaps one might have even concluded that HRI‘s land just isn‘t part of any community at all. The whole exercise takes on the feel of Goldilocks, searching for an “appropriate” community of reference that feels “just right.”
And that‘s just the start of things. Having defined a community of reference, it still remains under the approach urged by EPA and the dissents to ask whether a sufficient degree or percentage of the land in that community is set aside and federally superintended. But the requisite degree or percentage, of course, is specified nowhere in the text of the statute, our pre-Venetie precedent, EPA‘s land status determination, or the dissenting opinions. It must be, then, that this is a sort of I-know-it-when-I-see-it test. Cf. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J. concurring). EPA and the principal dissent tell us that 78% set-aside and 92% federal superintendence is sufficient. Land Status Determination at 11-12; Principal Dissent at 32-33. But one can‘t help to wonder: Would 70% set-aside and 90% superintendence cut it? And what happens when those percentages fall a bit farther still? Or if the numbers are reversed? Such extra-statutory guesswork
Neither would the scope of “appropriate communities of reference” remain stable under EPA‘s approach. With such nebulous criteria to employ, different courts would surely reach different conclusions about whether the same parcel of land falls within one community of reference or another — and thus reach competing holdings about which sovereign enjoys primary criminal law authority. Worse still, and as we have already noted, even the same court may take a different view about a community of reference‘s boundaries at different times — shrinking or expanding those boundaries depending on social or political changes in the area. See supra Section III.A. So just because a piece of land was (or wasn‘t) Indian country at the time of the last judicial decision, that‘s no guarantee the result would be the same next time. No one could be sure.
The dissents’ approach would complicate things further still by introducing the possibility of special purpose communities of reference. Given the “environmental context” in which this case arises, the principal dissent would have us consider presumed “common hydrolog[ical]” links between HRI‘s land and other parts of the Chapter. Principal Dissent at 14-15, 27. But one would think that, in non-environmental cases, courts would not be obliged to look at the hydrological “context” when trying to determine the appropriate community of reference. Who, after all, would fault the parties and court for failing to consider hydrological details in, say, a more conventional
Despite all this, the principal dissent levels the remarkable accusation that our decision today “introduc[es] confusion” into an area of law “settled for decades” and “overturn[s] decades of our precedent.” Principal Dissent at 2; see also id. at 31. But not only is the atextual community of reference test the source of confusion in this area of law, it is hardly as old or as venerated as the dissents would have it. In fact, the community of reference test is younger than this dispute; it‘s been around for only fifteen of the sixty-two years since Congress enacted
In the first place, the test has been applied only a few times since its genesis, and sporadically at that. After Watchman created the test in 1995, we applied it in a published opinion only once before Venetie came along in 1998. See Adair, 111 F.3d at 774-75.27 When the Supreme Court speaks, it (of course) supersedes our prior case law. And in 1999, in the first
In the second place, in each of the (few) cases we‘ve applied the test, we‘ve changed it. Literally. When creating the test in Watchman, we identified “two organizing principles” — “the status of the area in question as a community” and “the context of the surrounding area.” 52 F.3d at 1543-44. Two years later, in Adair, we added another factor concerned with “the geographical definition of the area proposed as a community.” 111 F.3d at 774. And in this case the principal dissent would have us reconfigure the factors in its balancing test yet again. See supra note 17. In its view, the test should now ask “whether the land . . . possesses a reasonable degree of coherence” and “whether the uses to which the land is put and the people inhabiting the land possess a reasonable degree of coherence.” Principal Dissent at 26.
Truth be told, then, the confusion in this area of law has been sown by the community of reference test. Its lack of any basis in the statute‘s text, history, or structure, its multifarious and incommensurable competing factors, the unpredictable results it yields, and its constant judicial reworking — all of this has left the law and litigants confused. Rather than adding to the confusion, our decision today eschews yet more tinkering in favor of the simple and predictable test the Supreme Court has told us to use.28
D
Though it does not control our outcome, it‘s worth noting that our decision today brings the law of this circuit into harmony with the law developed in our sister circuits after Venetie. In Blunk v. Arizona Department of Transportation, 177 F.3d 879 (9th Cir. 1999), the Ninth Circuit acknowledged that ”Venetie control[led] [its] decision,” and then concluded that the Navajo fee land in question before it was not Indian country under
In Yankton Sioux Tribe v. Podhradsky, 577 F.3d 951 (8th Cir. 2009), the Eighth Circuit conducted a similarly straightforward application of Venetie. Considering whether scattered trust lands qualified as Indian country under
A state court within our jurisdiction has also rejected this circuit‘s community of reference jurisprudence in favor of Venetie‘s two-part analysis. In State v. Frank, 52 P.3d 404 (N.M. 2002), the Supreme Court of New Mexico held that the
Ultimately, Venetie compels us to abandon the community of reference test. Under the proper test we adopt today, only two questions are relevant in assessing claims of jurisdiction under
It may be that Venetie complicates to some degree EPA‘s efforts to regulate activities affecting underground water sources, which of course don‘t follow neat land survey lines. But that is because the Agency has chosen, in an exercise of its considerable discretion under the SDWA, to limit its primary regulatory authority over water quality to those Indian lands encompassed by
Someday, EPA may seek to avoid these difficulties by unhitching its UIC permitting authority from
The panel opinion is vacated, the petition for review is granted, and the EPA‘s final land determination is vacated.
APPENDIX
In Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998), the Supreme Court rejected the Ninth Circuit‘s multi-factor test for determining whether a given area of land constitutes a dependent Indian community. Instead, the Court held that a two-part test should be applied to determine whether the “land in question” is a dependent Indian community: first, by considering whether the land was “set aside by the Federal Government for the use of the Indians as Indian land,” and second, assessing whether the land is “under federal superintendence.” Id. at 527.
While this test is straight-forward enough, the Supreme Court did not address a separate, antecedent question: to what area of land should this two-part test be applied? In other words, how do we determine the “land in question“? Over the last twenty years in this circuit, we have held that a “community-of-reference” test must be employed to determine the appropriate community, before determining whether that community is both “dependent” and “Indian.” See, e.g., Hydro Res., Inc. v. EPA (“HRI II“), 562 F.3d 1249, 1261 (10th Cir. 2009); Hydro Res., Inc. v. EPA (“HRI I“), 198 F.3d 1224, 1248 (10th Cir. 2000); United States v. Adair, 111 F.3d 770, 774 (10th Cir. 1997); Pittsburg & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531, 1543 (10th Cir. 1995), abrogated in part by Venetie, 522 U.S. 520; Pittsburg & Midway Coal Mining Co. v. Yazzie, 909 F.2d 1387, 1431 (10th Cir. 1990).
Today, the majority holds that, even though the Court in Venetie did not so much as consider the appropriate way to determine the relevant community—and, to the extent it did consider the question, it looked at the broader community rather than a narrow tract of land—Venetie nevertheless abrogated our community-of-reference test. By overturning decades of our precedent, the majority introduces confusion into an area of law that had been largely settled, and does so based on a case that did not even consider the issue. I respectfully dissent.
I. Background
The Church Rock Chapter of the Navajo Nation was formally certified as a local governmental unit by the Navajo Nation Council in 1955, although residents built a Chapter House for local governance purposes in 1946. The Chapter, which is located just east of the town of Gallup, New Mexico, consists of over 57,000 acres. The federal government holds approximately 52% of this land in trust for the Navajo nation, and holds an additional 26% in trust in the form of allotments to individual Indians. The Bureau of Land Management (“BLM“) owns an additional 10% of the land, which is subject to grazing leases granted to Navajos. In addition, the state of New Mexico owns about 4% the remaining land, and private interests own approximately 6%.1
In 1970, United Nuclear Corporation (“UNC“) purchased 160 acres of land in the Church Rock Chapter, in the southeast
No one lives on the Section 8 land, though the three-fourths of Section 8 not owned by HRI are subject to grazing permits issued by the United States Bureau of Indian Affairs (“BIA“). Located approximately six miles northeast of the Chapter House, the infrastructure on HRI‘s Section 8 land is primarily provided by the State of New Mexico and McKinley County. The state maintains the only access road to Section 8, State Highway 566, and HRI pays annual property taxes on the land to McKinley County. If HRI ever begins operating a mine on the property, the Public Service Company of New Mexico will provide it electricity, and the New Mexico State Water Engineer has already approved HRI‘s request for water rights.
In addition to the land in the Chapter being overwhelmingly owned by or for Navajos, the demography of the Chapter also shows an overwhelming Navajo presence. According to the 2000 census, approximately 98% of the Chapter‘s 2,802 residents are Navajo, and most of the rest are married to a Navajo. The residents primarily speak Navajo. Many residents of the Chapter raise livestock on Chapter lands—sometimes supplementing their income by producing traditional wares such as jewelry, stone and wood carvings, and by sewing and weaving—although some work in the nearby town of Gallup, which is located outside the boundaries of the Chapter.
The Chapter House, approximately three miles east of Gallup, acts as the social and political center for the Church Rock Chapter. Eighty-eight percent of Church Rock residents go to the Chapter House at least once a month. The Chapter House includes a Head Start center, elementary school, churches, and other buildings that provide for many of the residents’ educational, spiritual, and health needs. The Navajo Nation “provides housing, electricity, drinking water, wastewater treatment, sewer services, and utilities,” as well as police protection to residents of the Chapter, and the Chapter itself provides “scholarships, home repair and purchase assistance, and meals for seniors.” (R. doc. 44 at 21.) The federal government also provides some services in the Chapter, including road maintenance, grazing management and permitting, social and health services, and conservation services. While the state of New Mexico and the county maintain the main roads, most schools, and provide fire and EMS services, the Superintendent of the Eastern Navajo Agency of the BIA confirmed that the BIA considers the Church Rock Chapter to be a “distinct communit[y] of Navajo Indians who depend primarily on federal and tribal governmental services and protection.” (R. doc. 13b at 132.)
II. Discussion
As discussed more fully in the majority opinion, HRI now seeks a determination that EPA incorrectly decided that HRI‘s Section 8 land is part of a dependent Indian community and thus subject to EPA‘s jurisdiction for Safe Drinking Water Act (“SDWA“) purposes rather than the jurisdiction of the New Mexico Environmental Department (“NMED“). HRI argues that
A. The meaning of the word “communities” in 18 U.S.C. § 1151(b)
The question presented by this appeal requires the court to determine the meaning of the phrase “dependent Indian communit[y]” as used in
the term “Indian country,” as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.
It is a well-settled principle of statutory construction that “we are to give meaning
The use of the word “community” in the statute implies the existence of some setting within which the property in question is to be evaluated. Other areas of the law that draw upon the notion of a community show that community means context. For example, the obscenity standard developed by the Supreme Court in the First Amendment arena requires the trier of fact to apply “contemporary community standards,” a contextual inquiry that may produce different outcomes depending upon the community in which the test is applied. Miller v. California, 413 U.S. 15, 32 (1973) (“It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.“). Similarly, when considering whether a governmental action violates the Establishment Clause of the First Amendment, courts consider whether a reasonable observer, “aware of the history and context of the community and forum in which the religious display appears,” would consider the action as endorsing religion. McCreary County, Ky. v. ACLU, 545 U.S. 844, 866 (2005) (quoting Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 780 (1995) (O‘Connor, J., concurring in part and concurring in judgment)). Zoning regulations are also intended to “facilitate the orderly development of communities by confining particular uses to defined areas,” so city planners must look at the context of the area in deciding what sorts of uses to allow in the community. 83 Am. Jur. 2d Zoning & Planning § 2 (2009). Throughout the law, then, the term “community” is used to place the object of judicial scrutiny in an appropriate context.
The structure of
The purpose of
Felix Cohen agreed that it is “the full statute [that] was intended to reduce earlier difficulties which had arisen from the ‘checkerboarding’ of land ownership and rights-of-way. Thus, patented parcels of land and rights-of-way within dependent Indian communities should also be within Indian country.” Felix S. Cohen, Handbook of Federal Indian Law, Ch. 1 § D3c, at 39 (1982 ed.) (hereinafter “Cohen (1982)“) (emphasis added). Accordingly, the purpose of Congress‘s codification of
The majority‘s conclusion that title alone is determinative of whether a parcel of land is “Indian country” under
This interpretation of the word “communities” in
In interpreting
Finally, it should be remembered that this case arises specifically in an environmental context. This case is before the court as a review of a determination made by the EPA pursuant to the SDWA that the portion of Section 8 at issue is a dependant Indian community and that “EPA is therefore the appropriate agency to consider underground injection control permit applications under the [SDWA] for that land.” (R. doc. 44 at 1.) In the natural resources context, the notion of community assumes heightened importance. Aquifers generally are not found underneath just one specific isolated parcel of land, but rather extend under surrounding lands as well, and indeed the aquifer underneath HRI‘s Section 8 land runs underneath much of the Chapter. The externalities produced by a mining operation—including pollution, traffic, and the aesthetic harms created by having a large mining operation nearby—also affect the surrounding community. Indeed, the SDWA recognizes that water is a communal good that is affected by those around it and focuses much of its protection on “community water system[s].”
For these reasons, the word “communities” in
B. Venetie
The majority concludes that the Supreme Court‘s decision in Venetie forecloses a community-of-reference analysis. I disagree.
A brief discussion of the factual background of Venetie elucidates what the Court did and did not decide in that case.
The Court of Appeals for the Ninth Circuit applied a six-factor balancing test to determine whether the former-reservation lands constituted a dependent Indian community, and thus was subject to taxation by the tribe for work performed in the community by non-Indian members. State of Alaska ex rel. Yukon Flats Sch. Dist. v. Native Village of Venetie Tribal Gov‘t, 101 F.3d 1286, 1294 (9th Cir. 1996). After applying this test, the Ninth Circuit concluded that the lands were both set aside and superintended by the federal government, and that the land was therefore Indian country under
The Supreme Court reversed. Rejecting the multi-factor balancing test employed by the Ninth Circuit to determine whether the land was set aside and superintended as a dependent Indian community, the Court held that
The “community” requirement determines what area of land constitutes “the land in question.” That question was not addressed specifically in Venetie other than to accept, without discussion, that it was the entire land formerly constituting the Neets‘aii Gwich‘in reservation before it was extinguished. In the present case, the majority views HRI‘s quarter of Section 8 as the “land in question.” One would therefore expect, if it were following the majority‘s analysis, that the Venetie Court would have narrowly considered whether just the land on which the school was to be built was a dependent Indian community. But the Court decidedly did not do so. Instead, the Court in Venetie looked at all of the land that previously composed the Venetie Reservation—not just the site of the proposed school—to determine whether that land constituted a dependent Indian community. Venetie, 522 U.S. at 523 (“In this case, we must decide whether approximately 1.8 million acres of land in northern Alaska, owned in fee simple by the Native Village of Venetie Tribal Government pursuant to the [ANCSA], is ‘Indian country.’“) (emphasis added); see also id. at 532 (“The Tribe‘s ANCSA lands do not satisfy either of these requirements.“). Therefore, based solely on the words “land in question,” which are employed to refer to a broad area of land encompassing the narrow strip of land directly in dispute in Venetie, the majority overturns a long history of Tenth Circuit authority that requires a separate determination of the appropriate community.
I agree with the majority that Venetie abrogated the multi-factor test for determining whether a given community is a dependent Indian community. See HRI II, 562 F.3d at 1262 (”Venetie . . . altered the second step of the Watchman inquiry.” (citing HRI I, 198 F.3d at 1248)). However, Venetie simply did not discuss the first step of the Watchman analysis, namely, how the appropriate community is to be defined. At best, Venetie endorsed the application of its two-part requirement of set-aside and superintendence to a broader community of reference than just the isolated parcel where the dispute is situated. At worst, Venetie simply does not address the issue of whether a community of reference should first be determined. However, the one thing that cannot be concluded from Venetie is that it abrogated the Tenth Circuit‘s long-standing community-of-reference test to determine the relevant community to which the set-aside and superintendence factors are then applied in order to determine whether the community is a dependent Indian community.
C. Other interpretations of Venetie
Today‘s decision brings this circuit into conflict with the leading treatise in the field. According to Professor Cohen‘s treatise, the interpretation of
[t]he Court‘s decision in Venetie explicitly approved factors that appear to allow consideration of an entire community, so that fee lands might be considered part of a dependent Indian community:
“[T]he 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.”
Id. (quoting Venetie, 522 U.S. at 531 n.7) (emphasis added). Cohen thus adopts the more natural reading of “dependent Indian communities” and concludes, as would I, that “patented parcels of land and rights-of-way may also be within Indian country if they are within a dependent Indian community.” Id. at 195.
The majority cites two cases from our sister circuits that it claims support its position. Upon closer review, however, these opinions do not address the community-of-reference question with which we are presented here. First, in Blunk v. Arizona Department of Transportation, 177 F.3d 879 (9th Cir. 1999), the Navajo Nation purchased land (the “Navajo Fee Land“), ten miles from the Navajo reservation, from a private owner, and leased a portion of that land to a non-Indian who erected billboards on the land. Id. at 880. When the state required the lessee to obtain a permit for his billboards, the lessee filed suit in federal court seeking a declaratory judgment that state regulation of the billboards was preempted by federal law and Navajo sovereignty. Id. at 881. In considering whether the Navajo Fee Land was “Indian country” so that preemption may preclude the state‘s regulation of the land, the Ninth Circuit concluded that ”Venetie controls our decision.” Id. at 883. “The Navajo Fee Land is neither within the Navajo reservation nor is it an Indian allotment. The Navajo Fee Land is not a dependent Indian community because the land was purchased in fee by the Navajo Nation rather than set aside by the Federal Government.” Id. at 883-84. Additionally, the federal government did not “exercise any . . . level of superintendence over the Navajo Fee Land.” Id. at 884.
Blunk, however, did not consider the threshold question presented here: namely, whether
In addition, the facts of our case bear little resemblance to those in Blunk. Whereas 78% of the Church Rock Chapter is owned by the federal government in trust for either the Navajo Nation or individual Navajos, the tribe purchased the land in Blunk and owned title to it. In fact, Blunk is consistent with Tenth Circuit precedent. In a pre-Venetie case, this court concluded, as the Ninth Circuit did in Blunk, that land purchased and owned by a tribe in fee simple outside the reservation and not otherwise a part of a dependent Indian community was not Indian country merely by virtue of its tribal ownership, because the land was neither set-aside nor superintended by the federal government. Buzzard v. Okla. Tax Comm‘n, 992 F.2d 1073, 1076 (10th Cir. 1993). Blunk therefore should not inform this court‘s analysis of a community of land that is predominantly owned by the federal government rather than the tribe.
The majority states that it is “unclear how these courts could have conducted a proper
The majority also cites to a decision by the New Mexico Supreme Court which does directly address the community-of-reference test and concludes that the test does not apply. See State v. Frank, 52 P.3d 404, 409 (N.M. 2002) (“In light of the clear guidelines in the Venetie opinion, we decline to incorporate a community of reference inquiry into our case law.“). However, that court may have misinterpreted our community-of-reference test as comprising some of the balancing factors disapproved by Venetie rather than simply as an effort to determine the appropriate community of reference in
In addition, four years later, the New Mexico Supreme Court appeared to qualify Frank‘s holding by recognizing that “the fee land within a
This New Mexico case law is therefore not particularly illuminating, both because “we [are not] bound by a state court‘s interpretation of federal law,” Wilder v. Turner, 490 F.3d 810, 814 (10th Cir. 2007), and because, in light of Romero, it is not clear that the holding of Frank is still valid even in New Mexico courts.
D. Application to Section 8
1. Community of reference
Therefore, I conclude that a court considering whether a piece of land constitutes a dependent Indian community under
Determining the appropriate community of reference requires three steps. First, the court (or agency) must determine whether the proposed community has reasonably ascertainable boundaries. See Adair, 111 F.3d 770, 774 (10th Cir. 1997); see also Cohen (1982), Ch. 1 § D3c, at 39 (“[T]he statute intended to include only Indian communities with reasonably defined boundaries . . . .“). Next, the court must determine whether the land within those boundaries possesses a reasonable degree of coherence such that the land is logically treated as a community. Finally, the court should look at whether the uses to which the land is put and the people inhabiting the land possess a reasonable degree of coherence. If the area of land has reasonably ascertainable boundaries and the land possesses a reasonable degree of cohesiveness, then it is an appropriate community for the purpose of determining whether it is a dependent Indian community under
As articulated above, community, as used in
First, the hydrology of the Section 8 land is directly tied into the hydrology of the entire Church Rock Chapter. Three separate aquifers—the Westwater Canyon Aquifer, the Cow Springs Aquifer, and the Dakota Sandstone Aquifer—all run directly underneath the Section 8 land and throughout the Chapter. As of 1998, fourteen wells from the Westwater Canyon Aquifer—from which the Chapter residents predominately draw their drinking water—were within twenty miles of Section 8. The water from those wells meets primary SDWA standards, and the Branch Manager of the Water Management Branch of the Navajo Nation Department of Water Resources characterized the Westwater Canyon water as “outstanding.” (R. doc. 13b at 252.) This common hydrology throughout the Chapter makes it difficult for any activities that affect the groundwater carried out on Section 8 land to be limited to that parcel. (R. doc. 40 at B-3 (“Westwater Canyon . . . has some of
In addition, the land throughout the Church Rock Chapter is connected based on its history and usage. Cf. Venetie, 522 U.S. at 523-24 (discussing history of the Neets‘aii Gwich‘in lands). The land in the Church Rock Chapter is predominately devoted to livestock grazing; in fact, the portion of HRI-owned land within Section 8 is surrounded on all four sides by grazing land used by members of the Chapter. Grazing exists on Section 8 land, pursuant to BIA-issued grazing permits, in a manner that is integrated with the surrounding areas of the Chapter. For instance, Grazing Permit Number 7 contiguously covers over half of Section 8, all of Section 9, and half of Section 16, as well as a portion of Section 17; Grazing Permit Number 8 also covers part of Section 8, and extends south into Section 17. This demonstrates that Section 8‘s land is in no way distinct from the lands surrounding it and it is fully integrated in the land‘s history of supporting a livestock-based economy. From the standpoint of the characteristics of the land, then, Section 8 is part of the community of land in the Church Rock Chapter.
Although Venetie emphasized the importance of considering the land, it did not foreclose consideration of other factors for purposes of determining the community of reference. Indeed, while the word “community” can refer to the area in which a well-defined group of people lives, the word also refers to the group of people themselves. See Webster‘s Third New International Dictionary 460 (1986) (defining community as “a body of individuals organized into a unit or manifesting [usually] with awareness some unifying trait“). Consideration of the people who live within the Church Rock Chapter further shows that the Chapter is properly considered a single community. Based on the 2000 census, 97.7% of the 2,802 residents of the Chapter are Indian, and most of the remaining sixty-five residents are married to Navajos. A majority of the residents speak Navajo. In addition to a common heritage, residents of Church Rock remain closely tied to the Chapter. 88% of the residents of Church Rock go to the Chapter House at least monthly, further underscoring the sense of community throughout the Chapter. Finally, through the Chapter House, the residents receive a variety of services, including a Head Start program, community health care, housing assistance, work programs, utility line extensions, and a food distribution center.
Therefore, on the basis of these various indicators, I would conclude that the Church Rock Chapter, rather than Section 8 itself, is the appropriate community of reference. This analysis gives effect to the intent of Congress embodied in
The unfortunate consequences of the majority‘s opinion are made especially clear by the facts of this case. HRI seeks to operate a mine on portions of Section 8 and the adjoining Section 17. As Section 17 is trust land, however, it is unquestionably
The majority‘s extended discussion of the difficulties that would arise in administering a community-of-reference test overlooks one simple fact: community-of-reference has been the law in this circuit for the last twenty years. Outside of some conclusory and unsupported assertions offered by the states in their amicus brief, the parties have not called to our attention any significant problems that this test has caused. To the contrary, it is the majority that is casting off into uncharted waters, and while the community-of-reference test has caused no significant difficulties of which I am aware, the real-world implications of the majority‘s new approach are, quite frankly, unknown. Indeed, the relatively few cases seen by this court over the last two decades concerning confusion over the appropriate community of reference is strong circumstantial evidence that the test in fact works well.
2. The Venetie factors
Having established Church Rock Chapter as the appropriate community of reference, I would then apply Venetie‘s set-aside and superintendence requirements to determine if the Chapter constitutes a dependent Indian community. Upon examination, both requirements are easily met.
In order for a community to satisfy the set-aside requirement, “the Federal Government must take some action setting apart the land for the use of the Indians ‘as such.‘” Venetie, 522 U.S. at 530 n.5.; id. at 531 n.6 (“The federal set-aside requirement also reflects the fact that . . . some explicit action by Congress (or the Executive . . . ) must be taken to create or to recognize Indian country.“). Here, the government purchased several parcels in the area from the Santa Fe Pacific Railroad Company in the late 1920s. See HRI II, 562 F.3d at 1254 n.3. The government placed much of that land in trust for the Navajos and allotted the rest to individual Navajos. Id. at 1252. The government has set aside 78% of the land in the Chapter for the use of Indians either as trust land either for the tribe or for individuals in the form of allotments, and BLM owns an additional 10% of the land, for which grazing permits are granted to Navajos. Considering the Chapter as the community, then, the Chapter has been set aside by the federal government for the use of the Navajo.
The Chapter also satisfies the federal superintendence requirement. “Superintendency over the land requires the active involvement of the federal government.” Buzzard, 992 F.2d at 1076; see also Venetie, 522 U.S. at 533 (noting that, in past cases that found federal superintendence, “the Federal Government actively controlled the lands in question, effectively acting as a guardian for the Indians“). In McGowan, for example, the Court found superintendence where the federal government “retains title to the lands which it permits the Indians to occupy” and where the federal government “has authority to enact regulations and protective laws respecting this territory.” 302 U.S. at 539; see also United States v. Roberts, 185 F.3d 1125, 1132-33 (10th Cir. 1999); Buzzard, 992 F.2d at 1076.
III. Conclusion
In my view, the Church Rock Chapter is the appropriate community of reference. As the Chapter satisfies both of the criteria identified in Venetie, I would conclude that HRI‘s Section 8 land is within a dependent Indian community and affirm the panel‘s decision.
The lengthy opinions generated by this case and the division within this court as to the proper interpretation of
Hydro Resources, Inc. v. United States Environmental Protection Agency, No. 07-9506
HENRY, Circuit Judge, joined by BRISCOE, Chief Judge, LUCERO, Circuit Judge, dissenting.
In this case, we must determine who regulates ground water injections containing radioactive substances on a tract of land surrounded by an Indian community. The majority holds that because the individual tract at issue was neither (a) “‘set aside’ by Congress (or the Executive, acting under delegated authority ‘for the use of the Indians as Indian land[;]‘” nor (b) “‘dependent’ in the sense that it is ‘under federal superintendence,‘” it is not part of a dependent Indian community under
I write separately to underscore the major concerns that I have with the majority opinion—which I fear undoes decades of settled Indian law based upon sound principles. First, in my view, it is the majority, not the dissent, that fails to tie “the jurisdictional determination to the proper hitch: the will of Congress.” Maj. op. at 46-47. Second, the Supreme Court‘s decision in United States v. Mazurie, 419 U.S. 544, 551 (1975), which remains good law after Venetie, supports the community-of-reference approach. Third, Venetie itself, the Supreme Court case on which the majority grounds its rejection of the community-of-reference inquiry, did not involve non-Indian fee land surrounded by an Indian community and thus does not resolve the question before us. Fourth, I am not convinced that principles regarding the construction of criminal statutes should be applied here. Finally, and perhaps most importantly, the majority‘s approach conflicts with one of the central purposes of the statute at issue—to avoid checkerboard jurisdiction.
In
As Judge Ebel also observes, the community-of-reference standard is supported by the Supreme Court‘s decision in Mazurie, 419 U.S. at 551. There, in rejecting the contention that a non-Indian tract was part of “a non-Indian community” under
In particular, Venetie does not require us to abandon our established community-of-reference test with regard to the Section 8 land here at issue. Venetie did not involve land owned by a non-Indian mining corporation in fee simple located in the midst of trust land and allotments that constitute “Indian country” under the other subsections of
Additionally, I am not persuaded by the majority‘s view that our interpretation of the statute “will apply to all criminal cases arising under
Further, I must take exception to the majority‘s view that because some degree of checkerboard jurisdiction is inevitable in the application of
I take little comfort in the majority‘s observation that, in the EPA‘s judgment, the aquifer under HRI‘s land “‘does not currently serve as a source of drinking water’ and ‘cannot now and will not in the future serve as a source of drinking water.‘” Maj. op. at 17 (quoting
Moreover, as one scholar has noted, previous mining operations in the area at issue have had grave consequences: “[t]he tailings from uranium mines have contaminated air, groundwater, streams and soil on the Navajo reservation. The wind blew dust from the tailings piles into Navajo homes and water sources. Holding ponds on the reservation associated with the uranium mines were not well-maintained. In 1979, a mud dam near Church Rock, New Mexico[,] failed, spilling over 1,100 tons of uranium tailings, and an estimated 100 million gallons of radioactive wastewater into the Rio Puerco River. This is the largest nuclear spill in U.S. history, and it caused extensive damage to the Navajo people, their lands, water resources and the livestock that drank the contaminated water.” See Rebecca Tsosie, “Climate Change, Sustainability, and Globalization: Charting the Future of Indigenous Environmental Self-Determination,” 4 Envtl. & Energy L. & Pol‘y J. 188, 220 (2009).
As I understand it, under the rule announced by the majority, a uranium mine located on non-Indian land but surrounded by land that constitutes a dependent Indian community would not be subject to federal regulation. I fail to see how such a rule comports with the applicable statute, the case law, or the federal government‘s “distinctive obligation of trust . . . in its dealings with these dependent and sometimes exploited people.” Morton v. Ruiz, 415 U.S. 199, 236 (1974) (internal quotation marks omitted).
The proper standard for identifying a dependent Indian community under