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HRI, Inc. v. EPA

Citation: 30 ELR 20231
No. Nos. 97-9556, -9557, 198 F.3d 1224/49 ERC 1912/(10th Cir., 11/29/1999)

The court holds that the U.S. Environmental Protection Agency's (EPA's) decision to implement the direct federal underground injection control (UIC) program on certain New Mexico lands based on their Native American or disputed jurisdictional status did not violate either the Safe Drinking Water Act (SDWA) or EPA regulations. A non-Native American corporation proposed to operate a uranium mine on land in northwest New Mexico. The lands at issue consist of two parcels. The first parcel, known as Section 8, is owned by the uranium miner, and the second parcel, known as Section 17, is a split estate with the surface owned by the United States in trust for the Navajo Nation and with the uranium miner holding the mineral rights. New Mexico and the uranium miner challenge EPA's decision to implement the direct federal UIC programs on the Section 8 and Section 17 parcels.

The court first holds that it has jurisdiction to review EPA's decision to treat Section 8 as disputed Native American lands and to impose federal UIC requirements, but the underlying question of the final Native American land status of Section 8 is not yet ripe for review. The decision to treat Section 8 as disputed Native American land presents legal issues, legal consequences flow from the decision, and it has a direct and immediate impact on the uranium miner. Therefore, the court has jurisdiction to review EPA's decision. However, the underlying question of the final Native American status of Section 8 is not yet ripe for review because EPA has not completed its decisionmaking process with respect to that issue. The court next holds that a decision in an EPA letter to treat the jurisdictional status of Section 17 as "in dispute" is a reconsideration of its earlier position and constitutes a new and distinct decision and presents sufficiently final Agency action to permit judicial review. EPA's detailed examination of Section 17's jurisdictional status and its affirmative assertion of the application ofthe dispute rule reflect a sufficient degree of separateness, novelty, and finality to trigger judicial review. EPA's reconsideration of its position on Section 17 is more than merely a reassertion of an earlier position.

The court further holds that EPA's assertion of federal UIC jurisdiction over Sections 8 and 17 did not violate the SDWA. EPA's decision did not revoke New Mexico's primary enforcement responsibility for underground water sources, it simply determined that certain lands were outside the reach of New Mexico's program as previously approved. EPA's assertion of permitting jurisdiction over Sections 8 and 17 is best characterized as a state program revision appropriately controlled by EPA regulations, and the Agency regulatory procedures for program revision are a proper exercise of delegated authority under the statute. The court additionally holds that EPA's decision to assert SDWA jurisdiction over Sections 8 and 17 did not constitute an action contrary to law or an abuse of discretion. Considering the federal government's special trust obligation to Native Americans, the broad definition of Native American land, and the complicated jurisdictional history of many Native American lands, it is reasonable for EPA to adopt an interpretation of its regulations requiring, when lands are in dispute, presumptions in favor of Native American land status and resulting federal jurisdiction. Therefore, EPA is not foreclosed by state adjudications or by its earlier actions from finding a legitimate dispute as to the jurisdictional status of the lands in question, and the Agency did not violate the terms of its dispute rule. Finally, the court holds that EPA did not err in finding a legitimate dispute as to the Native American land status of Section 8 and in finding Section 17 to be Native American land.

Counsel for Petitioner
Jeptha P. Hill
Law Offices of Jep Hill
816 Congress Ave., Austin TX 78701
(512) 473-3696

Counsel for Respondent
Thomas A. Lorenzen
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Ebel and Briscoe, JJ.