No. 07-9506 IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT _________ HYDRO RESOURCES, INC., Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, and NAVAJO NATION, Intervenor-Respondent. _________ PETITION FOR REVIEW OF A DECISION OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _________ INTERVENOR-RESPONDENT NAVAJO NATION’S RESPONSE IN OPPOSITION TO PETITION FOR REHEARING EN BANC _________ NAVAJO NATION NORDHAUS LAW FRYE LAW FIRM, P.C. DEPT. OF JUSTICE FIRM, LLP Paul E. Frye Louis Denetsosie, Jill E. Grant 10400 Academy Rd. NE Attorney General 1401 K Street NW Suite 310 David A. Taylor Suite 801 Albuquerque, NM 87111 P. O. Drawer 2010 Washington, DC 20006 tel: 505-296-9400 Window Rock, AZ 86515 August 10, 2009 Attorneys for the Navajo Nation Case: 07-9506 Document: 01018188549 Date Filed: 08/10/2009 Page: 1
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No. 07-9506
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________
HYDRO RESOURCES, INC.,
Petitioner,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent, and
NAVAJO NATION,
Intervenor-Respondent.
_________
PETITION FOR REVIEW OF A DECISION OF THE
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_________
INTERVENOR-RESPONDENT NAVAJO NATION’S
RESPONSE IN OPPOSITION TO
PETITION FOR REHEARING EN BANC_________
NAVAJO NATION NORDHAUS LAW FRYE LAW FIRM, P.C.
DEPT. OF JUSTICE FIRM, LLP Paul E. Frye
Louis Denetsosie, Jill E. Grant 10400 Academy Rd. NE
Attorney General 1401 K Street NW Suite 310
David A. Taylor Suite 801 Albuquerque, NM 87111
P. O. Drawer 2010 Washington, DC 20006 tel: 505-296-9400
Window Rock, AZ 86515
August 10, 2009 Attorneys for the Navajo Nation
Case: 07-9506 Document: 01018188549 Date Filed: 08/10/2009 Page: 1
where this Court held that a tribe’s unilateral purchase of fee lands, with no active federal
involvement and no federal action designating the land for Indian use, does not create
“Indian country,” Blunk having the added feature of the affected tribe affirmatively
disclaiming “Indian country” status of the fee land in question. 177 F.3d at 884. In contrast,
active federal supervision and set-asides of land for exclusive Navajo use characterize the
community here. Hydro Resources, 562 F.3d at 1266-67; AR 44 (EPA decision) at 10-13.
The snippets HRI cites from federal district courts and state courts, typically dealing
with Eastern Indians and special jurisdictional acts pertaining to those tribes, see Pet. at 9-10,
do not create relevant conflicts and certainly do not undermine the precedents of this Court
Case: 07-9506 Document: 01018188549 Date Filed: 08/10/2009 Page: 17
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requiring the appropriate community to be defined before applying the set-aside and
superintendence requirements. HRI’s listing of New Mexico state court decisions (Pet. at
10) fails to recognize the central holding of the most recent New Mexico Supreme Court
case, “that the fee land within a § 1151(b) dependent Indian community is Indian country just
like the fee land within a § 1151(a) reservation.” Romero, 142 P.3d at 895. Notably, in
Romero, decided shortly after Arietta, the New Mexico Supreme Court also expressly
rejected the contention that “we should look only to the parcels of private fee land, rather
than the whole pueblo . . .. Instead, we look to the pueblo as a whole and determine if the
pueblo is under federal government superintendence.” Id. at 892. Moreover, Romero limited
to its special facts an earlier case that had rejected the “community of reference” test. Id.
(distinguishing State v. Frank, 52 P.3d 404 (N.M. Sup. Ct. 2002)).
C. HRI’s Fear of a Jurisdictional “Black Hole” Is Unfounded.
HRI’s fear of an expanding tribal jurisdictional “black hole” is unfounded for at least
four reasons. First, this case does not concern tribal jurisdiction at all. It concerns federal
jurisdiction. Tribal authority over non-Indians, even in formal reservations, is governed by
additional tests. Hydro Resources, 562 F.3d at 1265 & n.17; see Montana v. United States,
450 U.S. 544 (1981). Second, the panel’s decision is expressly narrow. Hydro Resources,
562 F.3d at 1266 (“we emphasize that our holding is narrow and restricted to the facts of this
case”). Third, and more generally, this Circuit requires any dependent Indian community
to be defined by objective boundaries, foreclosing indistinct and mutating Indian country
Case: 07-9506 Document: 01018188549 Date Filed: 08/10/2009 Page: 18
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boundaries. Id. at 1262; Adair, 111 F.3d at 774.
But the most fundamental misunderstanding reflected in this fear is the assumption
that the Navajo Nation will act as some sort of jurisdictional Pac Man, snapping up as Navajo
Indian country any stray lands that happen to be near its reservation. The Navajo Nation is
no rogue state; it is a federally recognized Indian tribe with respectful relationships with the
States. See United States v. Smiskin, 487 F.3d 1260, 1271 (9th Cir. 2007). Indeed, in two
of the decisions upon which HRI has placed primary reliance, the Navajo Nation was asked
for its position on the Indian country status of certain lands near the reservation: in the first,
the Navajo Nation disavowed any interest in the outcome of the matter, Blunk, 177 F.3d at
884; in the second, the Speaker of the Navajo Nation Council, Lawrence Morgan, testified
that the Navajo Nation did “not exercise any real authority” over the land, United States v.
M.C., 311 F.Supp. 2d 1281, 1286 (D.N.M. 2004). The black hole is a red herring.
D. HRI Presents No Question of Exceptional Importance.
HRI’s contention that this case is exceptionally important is based first on the
mistaken notion that the panel decision deals with tribal, rather than federal, regulatory
authority. Pet. at 12-14. The panel properly limited its review under the Administrative
Procedures Act to the agency decision, which did not advert to Navajo authority in any way.
Hydro Resources, 562 F.3d at 1265 n.17. HRI complains about dictum in Watchman upon
which, HRI contends, the “Panel Decision rests.” Pet. 14. The panel’s decision belies this
contention; it does not quote or rely on this isolated passage, perhaps precisely because this
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case does not concern tribal authority while Watchman did.
The issue decided by the panel is whether an isolated tract of fee land within an Indian
community may be Indian country in some cases. The panel held, in the narrow
circumstances of this case, that it could. That decision broke no new ground. Non-Indian
inholdings within dependent Indian communities have been determined to be Indian country
by the New Mexico Supreme Court in Romero and by the New Mexico Court of Appeals in
Atcitty. This Court’s reasoning in Arietta compels the same conclusion. 436 F.3d at 1250.
Indeed, the first decision construing 18 U.S.C. § 1151(b), Martine, affirmed a district court
ruling that the off-reservation Ramah Navajo Chapter is a dependent Indian community
notwithstanding its mix of land titles. See Watchman, 52 F.3d at 1543.
Finally, although the State of New Mexico petitioned for review of EPA’s interim
jurisdictional determination in HRI, 198 F.3d at 1230, it did not petition for review of EPA’s
final determination. New Mexico merely urged as amicus curiae that “the EPA
determination, if upheld, should be narrowly construed and that it should have no legal effect
on the State’s other programs.” Amicus Curiae Brief of the State of New Mexico Filed in
Support of No Party (June 19, 2007) at 9. The panel honored New Mexico’s request. 562
F.3d at 1266. Especially because New Mexico did not intervene to contest EPA’s final
decision, any change from that position would be entitled to little deference. See Penobscot
Nation v. Fellencer, 164 F.3d 706, 710-11 (1st Cir.), cert. denied, 527 U.S. 1022 (1999).
IV. CONCLUSION
The Petition should be denied.
Case: 07-9506 Document: 01018188549 Date Filed: 08/10/2009 Page: 20
s/ Paul E. Frye
Paul E. Frye
FRYE LAW FIRM, P.C.
10400 Academy Rd. #310
Albuquerque, NM 87111
tel.: 505-296-9400
fax: 505-296-9401
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Intervenor-Respondent Navajo Nation’s Response in Opposition to Petition for Rehearing EnBanc was filed with the Court’s electronic filing system, where it is automaticallyprovided to those counsel registered with the system, and also served on counsel ofrecord by placing same in the United States mail, first-class postage prepaid andaddressed and addressed as follows, this 10th day of August, 2009:
Marc D. Flink John J. IndallCasie D. Collignon Comeau, Maldegan, Templeman &Baker & Hostetler Indall, LLP303 E. 17th Street, Suite 1100 141 East Palace AvenueDenver, CO 80203 Santa Fe, NM 87504
David A. Carson Anthony J. ThompsonU.S. Department of Justice Christopher S. PugsleyEnvironment and Natural Resources THOMPSON & SIMMONS, PLLC1961 Stout Street, 8th Floor 1225 19th Street, NW, Suite 300Denver, CO 80294 Washington, D.C. 20036
Christopher D. Coppin Robert W. LawrenceAssistant Attorney General Jonathan William RauchwayState of New Mexico Constance Rogers111 Lomas NW, Suite 300 Davis, Graham & Stubbs, LLPAlbuquerque, NM 87102 1550 Seventeenth St., Suite 500
Denver, CO 80202
s/ Paul E. Frye Paul E. Frye
Case: 07-9506 Document: 01018188549 Date Filed: 08/10/2009 Page: 21
I certify that all required privacy redactions have been made, and with theexception of those redactions, every document submitted in Digital Form or scannedPDF format is an exact copy of the written document filed with the clerk and thedigital submissions have been scanned for viruses with the most recent version of thevirus scanning program, AVG Anti-virus Free Edition, last update was August 9,2009 and according to the program, is free of viruses.
s/ Norma J. Keranen Norma J. Keranen, Paralegal Frye Law Firm, P.C.10400 Academy N.E., Suite 310Albuquerque, NM 87111Tel: (505) 296-9400
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