Case: 07-9506 Document: 01018293592 Date Filed: 10/16/2009 ... · Watchman, 52 F.3d at 1543-44....

No. 07-9506

IN THE UNITED STATES COURT OF APPEALSFOR THE TENTH CIRCUIT

HYDRO RESOURCES, INC.,Petitioner,

V.

UNITED STATES ENVIRONMENTALPROTECTION AGENCY,

Respondent,

NAVAJO NATION,

Intervenor.

Rehearing En Banc

Review of a Final Order of theUnited States Environmental Protection Agency

Land Status DeterminationFebruary 6, 2007

EN BANC AMICUS CURIAE BRIEF OF THE STATES OFCOLORADO, KANSAS, NEW MEXICO UTAH and

WYOMING IN SUPPORT OF PET1TIONER

GARY K. KING, Justin MillerAttorney General Chief CounselChristopher D.Coppin Office of the GovernorSpecial Assistant Attorney General 490 Old Santa Fe Trail #400State of New Mexico Santa Fe, New Mexico 87501lii Lomas, NW Suite 300 (505) 476-2200Albuquerque, New Mexico 87102 (505) 476-2207 (facsimile)(505) 222-9000(505) 222-9183 (facsimile)

MARK L. SHURTLEFF STEVE SIXUtah Attorney General Attorney General of Kansas

Case: 07-9506 Document: 01018293592 Date Filed: 10/16/2009 Page: 1

Utah State Capitol — Suite 230P.O. Box 142320Salt Lake City, Utah 84114-2320(801) 538-9600

JOHN W. SUTHERSAttorney General of Colorado1525 Sherman St., 7th FloorDenver, Colorado 80203(303) 866-5634

120 SW 10th Ave., 2nd FloorTopeka, Kansas 66612

BRUCE A. SALZBURGAttorney General of Wyoming123 Capitol Building200 W. 24th StreetCheyenne, Wyoming 82002(307) 777-7841

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ii

INTEREST OF AMICUS CURIAE STATES 1

ARGUMENT 3

I. THE PANEL DECISION IN THIS CASE IS NOT IN ACCORD WITHTHE UNITED STATES SUPREME COURT DECISION IN VENETIEAND WILL LEAD TO CONFLICTS, CONFUSION ANDLITIGATION 4

CONCLUSION 7

CERTIFICATE OF COMPLIANCE 7


TABLE OF AUTHORITIES

FEDERAL CASES:

Alaska v. Native Village of Venetie Tibal Government,522 U.S. 520 (1998) 2,3,4, 5,6

Pittsburgh & Midway Coal Mining Company v. Watchman,52 F.3d 1531 (10t1 Cir.1995) 2,4, 6

United States v. Arrieta, 436 F.3d 1246, 1250 (10th Cir. 2006), cert. denied 547U.S.1185(2006) 6

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INTEREST OF AMICUS CURIAE STATES OF COLORADO, KANSAS,NEW MEXICO, UTAH and WYOMING

The States of Colorado, Kansas, New Mexico, Utah and Wyoming (“States”)

are authorized to file an amicus curiae brief pursuant to Fed. R. App. P. 29 (a).

The States file this brief in support of Hydro Resources, Inc. (“HRI”) to reverse the

decision of the Environmental Protection Agency (“EPA”) that certain land owned

in fee by HRI outside of any reservation boundary is “Indian country” under 18

U.S.C. § 1151(b), thus depriving the State of New Mexico of jurisdiction to

regulate HRI’s mining operations on the land in question. The States want to bring

to this Court’s attention the States’ unique interests in this matter and how any

final determination will impact the States.

The State of New Mexico owns land in fee for public purposes and in trust for

specific educational institutions outside of Indian reservations but close to Indian

reservations throughout the State. If EPA’s land determination is left to stand, it

can only be assumed that lands owned by the State of New Mexico, which are used

to carry out the governmental duties of the State, could also he considered to be

“Indian country” and thus outside the jurisdiction of the State. More importantly,

the States have a number of activities and programs occurring throughout the

States near Indian reservations that are important and beneficial to the residents


and entities located within those areas. Who has jurisdiction to operate those

programs is of vital interest to the States.

The States have an interest in understanding whether this Court believes the

‘community of reference test” from the case of Pittsburgh & Midway Coal Mining

Company v. Watchman, 52 F.3d 1531 (l0t1 Cir.1995) still applies notwithstanding

the United States Supreme Court’s ruling in Alaska v. Native Village of Venetie

Tribal Government, 522 U.S. 520 (1998) because jurisdictional disputes will arise

from the vague test employed in Watchman. The States are concerned that the use

of such a test will lead to jurisdictional confusion; tension between the State and

Indian tribes; and further litigation because of the ambiguity.

It is important for the Court to consider the intergovernmental relationships

between the States and Indian tribes when rendering a ruling in this case to ensure

that the positive practices and policies of the States are not undermined or unduly

disrupted by the Court’s ruling. It is critical that any legal standard for determining

“Indian Country” status does not increase the potential for future legal debates and

controversy due to confusing or unclear criteria. EPA’s decision increases the

potential for conflict between the States and Indian tribes.

EPA’s decision, if lefi to stand, will trigger new disputes and litigation, to

the detriment of cooperative, intergovernmental relationships that the State of New

Mexico has developed with Indian tribes, as explained in detail in the State’s


amicus curiae brief filed originally. While resolving an outstanding jurisdictional

question may appear to be the laudable goal, this Court should also consider all

perspectives and interests involved and any corollary impacts such a ruling may

have to the detriment of tribal-state cooperative efforts. It is critical that this

Court’s ruling minimizes the potential for future disputes and does not create or

foster greater uncertainty and conflict that could disrupt these important

government-to-government relationships.

If EPA’s decision is allowed to stand, there will be pressure for both sides to

resort to a defensive posture and forego positive cooperative arrangements. In

addition, there will be costly jurisdictional battles.

ARGUMENT

The States assert that Venetie provides an objective two-part test for defining a

dependent Indian community, thus, defining Indian country: (1) the federal

government must have set aside the land in question for the use of Indians as

Indian land; and (2) federal agencies must superintend the Indian land in question.

Venetie, 522 U.S. at 527. The Supreme Court’s holding leaves no room for the

subjective “community of reference” inquiry that EPA and the earlier Panel of this

Court conducted before applying the Venetie test. The Supreme Court in Venetie

established a bright-line test for determining what properties can be considered

Indian Country — it did not contemplate a subjective “threshold test,” and it


rejected the factors that the EPA and the original Panel used to establish the

Church Rock Chapter as the community of reference.

THE PANEL’S DECISION IN THIS CASE IS NOT IN ACCORI) WITHTHE UNITED STATES SUPREME COURT DECISION IN VENETIE AND

WILL LEAD TO CONFLICTS, CONFUSION AND LITIGATION

At the heart of the legal debate in this case are the disparate views over the

validity of the “community of reference” test from the Watchman case in a post

Venetie world. In Venetie, the Supreme Court stated:

In each of these cases, therefore, we relied upon afinding of both a federal set-aside and federalsuperintendence in concluding that the Indian lands inquestion constituted Indian country and that it was

permissible for the Federal Government to exercisejurisdiction over them. Section 1151 does not purport to

alter this definition of Indian country, but merely liststhe three different categories of Indian country

mentioned in our prior cases: [citations omitted]

We therefore must conclude that in enacting § 115 1(b),

Congress indicated that a federal set-aside and afederal superintendence requirement must be satisfiedfor a finding of a ttdependent Indian community’ — just

as those requirements had to be met for a finding ofIndian country before 18 U.S.C. § 1151 was enacted.These requirements are reflected in the text of §11 51(b): The federal set-aside requirement ensures that the

land in question is occupied by an “Indian community”; thefederal superintendence requirement guarantees that the

Indian community is sufficiently “dependent” on theFederal Government that the Federal Governmentand the Indians involved, rather than the States, are to

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exercise primary jurisdiction over the land in question.[footnotes omitted]

522 U.S. at 530-31 (italics in original) (emphasis added).

Thus, Venetie provides a bright-line test to determine Indian country. The

land must be set aside for use by the federal government for the use of Indians and

the land must be under federal superintendence. In this case, privately owned land

outside of Indian reservations could be considered to be Indian country through the

use of the community of reference test employed by EPA and the Panel simply

because the private land is near land that is legitimately set aside for use by Indians

and under federal superintendence.

The EPA’s administrative determination in this case was the first attempt at

using the “community of reference” test to determine the land status of Section 8,

the land in question. The States have serious concerns regarding the application of

the “community of reference” test because such a test does not survive the United

States Supreme Court decision in Venetie and the use of such a test will only result

in jurisdictional confusion and further litigation. In EPA’s discussion, it appears

that the test itself requires the finding of the “status of the area in question as a

community” and “the relationship of the area in question to the surrounding area.”

These two descriptions are vague and do not provide the kind of clear, bright line

rule that will help the States in determining theft jurisdiction. In some cases in

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rural areas, the “nearest” community may be miles away from the land in question,

or there may be multiple communities equidistant from the site of the activity.

Watchman, 52 F.3d at 1543-44.

Other puzzling aspects of this test are the required examination of the

infrastructure provided to the surrounding area of the “community.” In many

cases, there is often a blending of local, tribal, county and State services. How

does a State determine that despite this blending of services, that the Federal

government, instead of the State, has “primary jurisdiction?” Venetie, 522 U.S. at

527, n.1. How does a State determine which government services should be given

ample weight in the analysis, whereas other services are given negligible weight,

such as general federal social programs? Venetie, 522 U.S. at 534.

Furthennore, the question remains whether the fact the land is within the

exterior boundaries of a reservation or a pueblo is a determining factor. It is a

detennining factor in this Court’s most recent ruling applying the Venetie

decision. United States v. Arrieta, 436 F.3d 1246, 1250 (10th Cir. 2006), cen.

denied 547 U.S. 1185 (2006) (holding that county road was a “dependent Indian

community” since the Pueblo held title to the land under the road and it was

located within the exterior boundaries of the Pueblo).

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CONCLUSION

It is difficult for the States to operate and administer programs in a consistent

and complementary way when there are open questions and vague standards

employed in the “community of reference” test employed by EPA and the original

Panel in this case. The more specific and concise the standard is, the greater the

likelihood for fewer legal disputes and costly litigation. The States request this

Court to reverse EPA’s land determination and to provide the bright line standard

for jurisdictional detenninations as directed by the United States Supreme Court in

Venetie.

CERTIFICATE OF COMPLIANCE

Pursuant to Rule 32(a) the amici makes the following certifications:

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(aX7)(B) because this brief contains 2,314 words, excluding the parts of the

briefexempted by Fed. it App. P. 32(aX7)(BXlii).

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(aX5) and the type style requirements of Fed. it App. P. 32(aX6) because this

brief has been prepared in a monospaced typeface using Microsoft Word 2003 in

14 pitch font, Times New Roman style.

3. The digital submission of this brief has been scanned for viruses with the

most recent version of a commercial virus scanning program, E-Trust Management

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Suite r3, most recently updated October 16, 2009, and according to the program, is

free from viruses.

Respectfully submitted,

GARY K. KINGAttorney GeneralChristopher D. CoppinSpecial Assistant Attorney General111 Lomas, NW Suite 300Albuquerque, New Mexico 87102(505)222-9175(505)222-9183 (fax)

Justin Miller, Chief CounselOffice of the GovernorState Capitol, Suite 400Santa Fe, New Mexico 87501(505) 476-2236(505) 476-2207 (fax)

MARK L. SHURTLEFFUtah Attorney GeneralUtah State Capitol — Suite 230P.O. Box 142320Salt Lake City, Utah 84114-2320(801) 538-9600

JOHN W. SUTHERSAttorney General of Colorado1525 Sherman St., 7th FloorDenver, Colorado 80203(303) 866-5634

STEVE SIXAttorney General of Kansas120 SW 101h Ave., 2nd FloorTopeka, Kansas 66612

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BRUCE A. SALZBURGAttorney General ofWyoming123 Capitol Building200 W. 24th streetCheyenne, Wyoming 82002(307) 777-7841

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that on this date, I caused and true andcorrect copy of the foregoing EN BANC AMICUS CURIAE BRIEF OF THESTATES OF COLORADO, KANSAS, NEW MEXICO, UTAH andWYOMING and IN SUPPORT OF PETITIONER to be served by filing it withthe Court’s electronic filing system, where it is automatically provided to thosecounsel registered with the system, and also by first class United States mail uponthe following counsel:

Marc D. PlinkCasie D. CollignonBaker and Hostetler, LLP303 East 17th Street, St 1100Denver, CO 80203

Jon J. IndallComeau, Maldegan, Templeinan &

Indall, LLP141 East Palace AvenueSanta Fe, NM 87605

David A. TaylorThe Navajo Nation Department ofJusticeP.O. drawer 2010Window Rock, AZ 86515

Paul E. FryeFrye Law Firm, P.C.10400 Academy N.E., Suite 310Albuquerque, NM 87111

Jill E. Grant1401 K Street N.W., Suite 801Washington, D.C. 20005

Anthony J. ThompsonChristopher S. PugsleyThompson & Simmons, PLLC1225 — 19th St. NW, Suite 300

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Washington, D.C. 20036

Robert W. LawrenceJonathan W. RauchwayConstance L. RogersDavis Graham & Stubbs LLP1550— l7t1 Street, Suite 500Denver, CO 80202

John C. CrudenDavid A. CarsonEnvironment & Natural Resources DivisionUnited States Department of Justice1961 Stout St. — 8th FloorDenver, CO 80294

Dated: October 16, 2009

Christopher D. CoppinSpecial Assistant Attorney General

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Case: 07-9506 Document: 01018293592 Date Filed: 10/16/2009 ... · Watchman, 52 F.3d at 1543-44....

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Transcript of Case: 07-9506 Document: 01018293592 Date Filed: 10/16/2009 ... · Watchman, 52 F.3d at 1543-44....