Wednesday, June 16, 2010

Hydro Resources, Inc. v. EPA

Jun 15: In the U.S. Court of Appeals, Tenth Circuit, Case No. 07-9506. In this highly complicated case involving regulation on Indian Country and various related definitions, the majority Appeals Court said, "Everyone agrees that Hydro Resources, Inc. (HRI) must obtain a Safe Drinking Water Act (SDWA" or the Act) permit to mine its property. The only question is: from whom?" The Environmental Protection Agency (EPA or the Agency), which administers the Act, has chosen to delegate its permitting authority in the State of New Mexico to the New Mexico Environment Department (NMED), but with one exception: EPA has not delegated its authority to issue permits for mining activities on "Indian lands."
    The majority Appeals Court said, "Thinking its land hardly qualified as 'Indian land' -- HRI owns its property in fee, it pays county real estate taxes, the land is uninhabited, and it is not inside any Indian reservation or otherwise set aside and superintended for Indian use -- the company proceeded to apply for, and obtain, a permit from NMED. Initially, EPA professed no quarrel with this, and it has never questioned NMED's administration of the Act. But eventually a dispute broke out over the status of HRI's land and, after years of regulatory wrangling, EPA issued a 'final land status determination' expressing its judgment that HRI's land qualifies as 'Indian land.' As a result, EPA ruled, HRI must seek and obtain its SDWA permit from it rather than NMED."
    In a split decision of the full panel the majority Appeals Court ruled, ". . .we cannot help but conclude that EPA's final land
status determination under review is inconsistent with the statute's terms as a matter of law and cannot stand. The panel opinion is vacated, the petition for review is granted, and the EPA's final land determination is vacated.
    However, one of the minority opinions notes, "The lengthy opinions generated by this case and the division within this court as to the proper interpretation of 18 U.S.C. § 1151(b) attest to the confusion surrounding this area of the law. This confusion is unfortunate, and the consequences are likely to be enormous, reintroducing checkerboard jurisdiction into the southwest on a grand scale and disrupting a field of law that had been settled for decades. In overturning our community-of-reference test, the majority today reaches a result not compelled by either Supreme Court or Tenth Circuit precedent. Before all is said and done, this confusion and the serious consequences generated by today's opinion may ultimately require resolution by the Supreme Court."
    Access the complete opinions and all dissents (click here).

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