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Kescoli v. Babbitt

ELR Citation: 27 ELR 20542
Nos. 94-17125, 101 F.3d 1304/(9th Cir., 11/22/1996)

The court holds that the Navajo Nation and the Hopi Tribe are necessary and indispensable parties to a Nation member's suit against the Office of Surface Mining Reclamation and Enforcement (OSM) challenging a modification to a mining permit condition the Nation and Tribe negotiated with the OSM and a mining company. Plaintiff alleged that while the original condition adequately protected sacred burial sites, the modified condition will allow the mining company to mine within 100 feet of a burial site in violation of §522(e)(5) of the Surface Mining Control and Reclamation Act. The court first holds that although the original permit has expired, plaintiff's appeal is not moot. The special condition is still in effect because it is included in a renewal permit, and the only modification to the special condition does not materially modify its terms. The court next holds that the Nation and the Tribe are necessary parties to plaintiff's action against the OSM. Plaintiff's action would directly affect the Nation's and the Tribe's settlement agreement with the mining company and indirectly affect their mining lease agreements by challenging the conditions under which the company may mine on the Navajo reservation. The court holds that the district court did not err in determining that the Nation and the Tribe could not feasibly be joined in the action. The Nation and the Tribe did not waive their sovereign immunity by intervening in administrative proceedings that reviewed the settlement agreement. The court next holds that thedistrict court did not abuse its discretion in determining that although balancing factors were not clearly in favor of dismissal, concern for the protection of tribal sovereignty warranted dismissal. The first factor weighed in favor of dismissal because the Nation and the Tribe have an interest in the litigation by virtue of their lease and settlement agreements. With regard to the second factor, potential prejudice to the Nation and the Tribe could not be effectively minimized because relief for the member could not be effectively shaped, in the Nation's and the Tribe's absence, to avoid prejudice to their interests. Further, although the third and fourth factors may favor allowing the plaintiff to proceed with the action, a plaintiff's interest in litigating may be outweighed by a tribe's interest in maintaining its sovereign immunity. Last, the court holds that the action should not continue under the public rights exception to dismissal, because the action is essentially private in nature and limited to a disagreement over the appropriate direction the Navajo Nation and the Hopi Tribe should take in relation to mining.

Counsel for Plaintiff
Timothy N. Black
Wilmer, Cutler & Pickering
2445 M St. NW, Washington DC 20037
(202) 663-6000

Counsel for Defendants
David C. Shilton
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before: THOMPSON, KLEINFELD, and TASHIMA, Circuit Judges.