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Menominee Indian Tribe of Wisconsin v. Environmental Protection Agency

ELR Citation: 50 ELR 20032
Nos. 19-1130, (7th Cir., 01/27/2020)

The Seventh Circuit affirmed dismissal of a challenge to the Michigan Department of Environmental Quality's approval of a CWA §404 permit for a proposed mine along the Menominee River. A Native American tribe argued that EPA and the Corps should have exercised authority over the permit because circumstances had changed since the Agency delegated authority for such permitting to Michigan in 1984, such that the section of the river near the proposed mine constituted a navigable waterway and thus that permitting could not remain delegated to the state. The district court dismissed the tribe's complaint, concluding that the letters sent by the agencies expressing their decision did little but reinforce the 1984 delegation, and thus did not constitute final agency action. The appellate court expressed reservations about how the agencies responded to the tribe's concerns, but agreed with the district court that the letters did not impose any obligations or deny any relief, and thus that there was no final agency action to review. It therefore affirmed dismissal.