Sovereign Immunity Does Not Bar Application of NEPA on Tribal Reservation Lands

Dine Citizens Against Ruining Our Environment v. United States Office of Surface Mining

Reclamation and Enforcement

2013 WL 68701

In Dine Citizens Against Ruining Our Environment v. United States Office of Surface Mining Reclamation and Enforcement, 2013 WL 68701, a Colorado federal court has rejected a Native American tribe's argument, based on tribal sovereign immunity, that the court lacked the authority to review a NEPA challenge to the expansion of a coal mine on reservation land.

The decision involved the Navajo Mine, a longstanding open-pit coal mine located entirely on reservation land. The mine is the sole source of coal for the Four Corners Power Plant, built specifically to burn coal from the mine. A private company operates the mine under a permit from the U.S. Office of Surface Mining Reclamation and Enforcement. In 2005, OSM amended the permit to allow the mine to expand into new areas, following the preparation of an EA and FONSI. Environmental interests sued, contending that an EIS should have been prepared.

The court's ruling arose from the Navajo Nation's efforts to block the lawsuit. The tribe moved to dismiss on the ground that it was an indispensable party under Federal Rule of Civil Procedure 19, and that accordingly, dismissal was required because the tribe's sovereign immunity prevented the tribe from being joined to the action. The court, employing the usual three-part indispensability analysis under Rule 19, denied the tribe's motion and allowed the lawsuit to proceed in the tribe's absence.

The implications of the tribe's argument appeared critical to the court's ruling. The court was keenly aware that the tribe's position, if accepted, would foreclose NEPA review under a broad range of settings: "[b]y [the tribe's] logic, virtually all public and private activity on Indian lands would be immune from any oversight under the government's environmental laws." The court also noted that the absence of an alternative forum for NEPA petitioners "weighs crushingly" against dismissal. The court found that the lawsuit did not hurt the tribe's interests because the suit challenged the adequacy of OSM's NEPA process, rather than any contractual rights or other interests the tribe may have in the expansion project.

The ruling demonstrates that courts are hard-pressed to permit a result that would remove a federal agency's NEPA decision from judicial scrutiny.

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