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).

Commuter Rail Division v. STB

Jun 15: In the U.S. Court of Appeals, D.C. Circuit, Case No. 08-1346. Canadian Pacific Railway Corporation (CPR), along with its indirect subsidiary Soo Line Holding Company (Soo Holding), and Dakota, Minnesota & Eastern Railroad Corporation (DME), along with its subsidiary Iowa, Chicago & Eastern Railroad Corporation (ICE), (collectively Applicants) applied to the Surface Transportation Board (STB or Board) for approval of a merger in which Soo Holding (and indirectly CPR) was to acquire DME and ICE. They filed the application under 49 U.S.C. § 11324, which authorizes the Board to initiate a proceeding to approve various transactions within its jurisdiction, including the acquisition of one or more railroads by another railroad.

    The STB approved the acquisition. Metra, which operates two rail lines that are potentially affected by CPR's acquisition, and the Sierra Club seek review of the STB's decision approving the acquisition. Metra challenges the Board's refusal to attach "conditions" to the approval, in order to protect Metra's rights over its track line running north from Chicago toward Wisconsin over which Soo Holding has trackage rights and for which CPR is the dispatcher. Sierra Club challenges the Board's decision to defer preparation of an environmental impact study (EIS) until CPR decides whether to move forward with the construction of a line connecting DME's track in South Dakota to certain coal mines located in Wyoming's Powder River Basin (PRB).

 

    The Appeals Court dismissed Sierra Club's petition for lack of constitutional standing and denied Metra's petition because "the Board's approval of the merger was not an abuse of its discretion." On the Sierra Club challenge, the Appeals Court concludes: "Because Sierra Club has not shown, as it must, 'a causal connection between the government action that supposedly required the disregarded procedure' -- here, approval of the DME acquisition -- 'and some reasonably increased risk of injury to its particularized interest,' we dismiss its petition for lack of standing." The Appeals Court cites Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658, 664 (D.C. Cir. 1996) (en banc).

 

    Access the complete opinion (click here).