Date: 04-17-2009

Case Style: Hydro Resources, Inc. v. United States Environmental Protection Agency (Defendant) and Navajo Reservation (Intervenor)

Case Number: 07-9506

Judge: Ebel

Court: United States Court of Appeals for the Tenth Circuit on appeal from the District of New Mexico, Bernalillo County

Plaintiff's Attorney: Marc D. Flink (Benjamin D. Pergament, Baker & Hostetler LLP, Denver, CO & Jon J. Indall, Comeau, Maldegen, Templeman & Indall, LLP, Santa Fe, NM, with him on the briefs) Baker & Hostetler LLP, Denver, CO, for Petitioner.

Defendant's Attorney: David A. Carson (Ronald J. Tenpas & John C. Cruden, with him on the briefs), U.S. Department of Justice, Environment & Natural Resources Division, Denver, CO, for Respondent.

Paul E. Frye (Louis Denetsosie, Attorney General, Navajo Nation Department of Justice, Window Rock, AZ & Jill E. Grant, Nordhaus Law Firm, LLP, Washington, DC, with him on the briefs), Frye Law Firm, P.C., Albuquerque, NM, for Intervenor.

Gary K. King, Attorney General, Christopher D. Coppin, Assistant Attorney General, Albuquerque, New Mexico, and Hilary C. Tompkins, Office of the Governor, Santa Fe, New Mexico, filed an Amicus Curiae brief for the State of New Mexico.

Anthony J. Thompson and Christopher S. Pugsley, Thompson & Simmons, PLLC, Washington, D.C., filed an Amicus Curiae brief for National Mining Association in support of Petitioner.

Description: Petitioner Hydro Resources, Inc. (“HRI”) challenges a February 6, 2007, U.S. Environmental Protection Agency (“EPA”) Land Status Determination, in which EPA concluded that certain land owned by HRI in the “checkerboard” area of northwestern New Mexico—the so-called “Section 8” land—is “Indian country.” EPA’s Determination subjects HRI’s proposed uranium mine to EPA regulation under the Safe Drinking Water Act (“SDWA”), 42 U.S.C. §§ 300f– 300j(26), rather than regulation by the New Mexico Environmental Department (“NMED”).

EPA’s regulations implementing the SDWA define Indian lands by reference to 18 U.S.C. § 1151. That section defines “Indian country” as (1) reservations, id. § 1151(a), (2) “dependent Indian communities,” id. § 1151(b), and (3) allotments, id. § 1151(c).1 The pertinent provision here is § 1151(b). After a notice and comment period and consultations with the Department of the Interior (“DOI”) and the Navajo Nation, EPA determined that the Section 8 land is located within a dependent Indian community. Under our precedents, we agree with EPA’s conclusion and, accordingly, we deny HRI’s petition.

I. BACKGROUND

A. The Section 8 Land and the “Checkerboard”

HRI, a non-Indian mining corporation, intends to operate a uranium mine in McKinley County, New Mexico. See HRI, Inc. v. EPA, 198 F.3d 1224, 1231 (10th Cir. 2000).2 Specifically, HRI seeks to mine within the confines of 160 acres of land that it owns in fee in the southeast portion of Section 8, Township 16N, Range 16W. Id. HRI acquired the land from United Nuclear Corporation (“UNC”), which had purchased the land from the United States in 1970; HRI also purchased, at that time, UNC’s patents for uranium-mining claims on the Section 8 land. The United States owns in fee simple the remainder of Section 8. Id.

No one lives on the Section 8 land. Gallup, the largest city in McKinley County, lies approximately 11 miles southwest of the Section 8 land, while the Navajo town of Church Rock lies approximately 6 miles south of the land. HRI pays annual property taxes on the Section 8 land to McKinley County. New Mexico maintains the only access road to Section 8, State Highway 566, while McKinley County shares responsibility with the federal government for the other roads in the area. McKinley County also provides fire, police, emergency, and school services to those living in the surrounding area. Meanwhile, should HRI’s uranium operations ever begin, Public Service Company of New Mexico will provide electricity, and the New Mexico State Water Engineer has approved HRI’s request for water rights.

Section 8 is located in the checkerboard area of northwestern New Mexico, where federal land grants created a “pattern of mixed Indian and non-Indian land title.” HRI, 198 F.3d at 1231.3 The Section 8 land is located near, but not within, the Navajo reservation. Instead, it is within the jurisdiction of the Eastern Navajo Agency and the geographic bounds of the Church Rock Chapter (the “Chapter”) of the Navajo Nation.4

The area surrounding Section 8 is “often referred to as the ‘EO 709/744 area’ because of its establishment as an Indian reservation under two executive orders bearing those numbers” which were issued in 1907 and 1908. Id. Just a few years later, however, those two executive orders were superseded by two additional executive orders “which restored unalloted lands [in that particular tract] to the public domain.” Id. The latter executive orders thereby terminated the reservation status of the “EO 709/744” tract. See Pittsburg & Midway Coal Mining Co. v. Yazzie (“Yazzie”), 909 F.2d 1387, 1419 (10th Cir. 1990). In Yazzie, this court concluded that the entire EO 709/744 area was not a de facto reservation and recognized the complicated jurisdictional status of the checkerboard lands. Id. at 1421. Thereafter, in Pittsburg & Midway Coal Mining Co. v. Watchman (“Watchman”), 52 F.3d 1531, 1542–45 (10th Cir. 1995), abrogated in part on other grounds by Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998), this court entertained the possibility that land in the checkerboard could constitute a “dependent Indian community” under 18 U.S.C. § 1151(b).

B. The Church Rock Chapter

As noted above, the Section 8 land falls within the bounds of the Church Rock Chapter. The Chapter is a local government organization of the Navajo Nation, authorized by the Navajo Nation Local Governance Act, see 26 N.N.C. § 1, to provide “for the general health, safety and welfare of the Chapter membership,” id. § 2.22. The Navajo Nation officially certified the Chapter on December 5, 1955.

The bounds of the Chapter encircle a land base of over 57,000 acres, 78% of which is held in trust for the Navajo or individual Navajos by the BIA. The lands which the BIA holds in trust were originally purchased by the United States from the Santa Fe Railroad Company for the Navajo tribe or for individual Navajo allottees pursuant to the Act of 1928. Around 10% of the Chapter land is held by the Bureau of Land Management (“BLM”) (and used almost exclusively by Navajos), 6% is privately owned, and 2% is owned in fee by the Navajo Nation. While the Section 8 land has no inhabitants, members of the Chapter live in adjacent areas. The Chapter’s social and political nerve center, the Chapter House, “is located about three miles east of the city limits of Gallup” (R. doc. 1 at 9) and approximately six miles south of the Section 8 land. A Head Start center, elementary school, several churches, and various other buildings housing Chapter, tribal, and BIA entities surround the Chapter House. These facilities serve the 2,800 or so (according to 2000 U.S. Census data) inhabitants of the Chapter’s land. Over 97% of those inhabitants are Navajos; most of the non-Indians living on the Chapter land are married to Navajos. A majority of the inhabitants speak Navajo. Primarily, the Chapter’s residents raise livestock as a livelihood. Many supplement their income with earnings from “traditional self-employment: jewelry making, silversmithing, sewing, stone carving, wood carving, and weaving.” (R. doc. 44 at 9.) Some Chapter residents commute to Gallup for work.

“Neither the unincorporated Churchrock Chapter nor the Navajo tribal government provides any infrastructure or basic services to Section 8.” (R. doc. 4 at 2; see also doc. 6 at 2.) However, the Navajo Nation provides a variety of services to the residents of the Church Rock Chapter. For example, the Nation polices the Chapter, although the Chapter makes up its own Navajo judicial district. The Navajo Nation also provides electricity, drinking water, wastewater treatment, and other utilities. The federal government complements these services, providing social services, natural resource management, grazing management and permitting, housing development, health services, economic development grants, law enforcement improvement grants, and education programs. Additionally, the Chapter itself also offers some services to its residents. The State of New Mexico services the main road through the Chapter and buses some Chapter students to school in Gallup. Public Service Company of New Mexico provides natural gas to Chapter residents.

C. The Safe Drinking Water Act

The SDWA, 42 U.S.C. §§ 300f–300j(26), establishes nationwide minimum drinking water protection standards. See H.R. Rep. No. 93-1185, at 1–2 (1974), reprinted in 1974 U.S.C.C.A.N. 6454, 6454–55; see also HRI, 198 F.3d at 1232. Those standards are implemented by EPA, which in many instances delegates certain regulatory prerogatives to states and Indian tribes. See HRI, 198 F.3d at 1232; see generally 42 U.S.C. §§ 300g-1 & 300h-1.5 As part of the SDWA, Congress instructed EPA to prescribe an underground injection control (“UIC”)6 program for all lands in the United States, including Indian lands, in order “to prevent underground injection which endangers drinking water sources.” 42 U.S.C. § 300h(b)(1).

By statutory default, EPA typically has primary enforcement responsibilities for lands that fall within 40 C.F.R. § 144.3’s definition of “Indian lands” until a tribe has secured “Treatment as a State” (“TAS”) status and primacy over its lands. That regulation, 40 C.F.R. § 144.3, states that “Indian lands” means “‘Indian country’ as defined in 18 U.S.C. 1151.” Where a dispute exists as to the “Indian country” status of land, EPA administers the UIC program until a final determination can be made. See 53 Fed. Reg. 43096, 43097 (Oct. 25, 1988);7 see also HRI, 198 F.3d at 1233. Accordingly, EPA administers the UIC program for Indian lands in New Mexico, with the exception of those lands under the purview of tribes that have secured TAS status and primacy. See HRI, 198 F.3d at 1232; 40 C.F.R. 147.1603 (“The UIC program for all classes of wells on Indian lands in New Mexico . . . is administered by EPA.”). Meanwhile, EPA has approved New Mexico’s UIC program; hence, elsewhere in the State of New Mexico, NMED regulates the type of UIC wells that HRI seeks to operate here. See 40 C.F.R. §§ 147.1600–147.1601; see also 48 Fed. Reg. 31640 (July 11, 1983).

D. Regulation of the Section 8 Land Under the SDWA

Although EPA approved the Navajo Nation for TAS and for primacy in 1994, see HRI, 198 F.3d at 1232–33, the two UIC programs at issue here are the EPA-administered program for Indian lands in New Mexico, see 40 C.F.R. § 147.1603, and the NMED program, see id. §§ 147.1600–147.1601.8 In approving New Mexico’s SDWA application for primacy, EPA recognized the geographic reach of the NMED UIC program to be statewide, except as to Indian lands. See 48 Fed. Reg. at 31640. This exception to the geographic reach of the NMED UIC program led to the dispute here, which is now in its second stage.

The first stage of the dispute stemmed from EPA’s decision that the jurisdictional status of the Section 8 land was in dispute. Prior to that decision, the NMED had already approved HRI’s request for a UIC permit for the Section 8 land in 1989. But the Navajo Nation submitted a letter in October 1996 to EPA, asserting that Section 8 was located within “Indian country” and thus fell outside the bounds of NMED’s regulatory jurisdiction. EPA, in turn, requested additional information about the jurisdictional issue from both the NMED and the Navajo Nation. In the meantime, however, EPA stated that it had “determined that a dispute exists regarding the Indian country status of Section 8, and, therefore, HRI must obtain its federal SDWA permit for Section 8 from EPA as well.” (R. doc. 13b at 96.) HRI and NMED appealed that determination to this court.9

On appeal, this court concluded that EPA had not erred in finding “a legitimate dispute as to the jurisdictional status of the lands in question.” HRI, 198 F.3d at 1244. The court remanded the issue to EPA “for a final determination as to whether [the Section 8] land is a dependent Indian community under 18 U.S.C. § 1151(b).” Id. at 1254.

On remand, EPA issued a notice inviting public commentary on the issue. The small pool of comments revealed a variety of interests in both the jurisdictional issue and the broader issue of uranium mining near Navajo communities. EPA also consulted with the Navajo Nation. Additionally, EPA sought the input of the DOI’s Solicitor, summing up the question as follows: “As framed by [the Tenth Circuit], the precise issue for EPA in determining the status of HRI’s land in Section 8, is whether the land is, or is part of, a ‘dependent Indian community’ as defined under 18 U.S.C. § 1151(b).” (R. doc. 47 at 2.) On November 3, 2006, the DOI Solicitor submitted its statement on the question (“DOI Opinion”). The Opinion concluded that the Section 8 land fell within the encincture of § 1151(b) because of the land’s ties to the Church Rock Chapter community.

After further analysis and investigation, EPA issued its Land Status Determination on February 6, 2007. The Determination reiterated much of the reasoning of the DOI Opinion. EPA ultimately concluded that “the Church Rock Chapter, which necessarily includes Section 8, is a ‘dependent Indian community.’” (R. doc. 44 at 13.) Accordingly, the “EPA is the proper authority under the SDWA to regulate underground injections on HRI’s Section 8 land.” (Id.) HRI petitioned this court to review EPA’s Determination.

II. DISCUSSION

A. Jurisdiction

This court has jurisdiction to review the EPA’s final decision under 42 U.S.C. § 300j-7(a)(2). The EPA, however, challenges HRI’s Article III standing to seek review of the Determination before this court. EPA reasons that because the Land Status Determination merely implicates which regulator (EPA or NMED) will enforce UIC regulations rather than what those regulations will be, HRI has suffered no harm; that is, because one of these two agencies will enforce the UIC regulations, it should not matter to HRI which of the two agencies it will be. However, we conclude that because “HRI must now obtain a permit from EPA prior to commencing underground injection on Section 8,” HRI, 198 F.3d at 1237, after already obtaining a permit from New Mexico, HRI will almost certainly incur additional expenses if EPA, in fact, has properly asserted jurisdiction over Section 8. Therefore, we conclude that HRI has standing.10

To have Article III standing, “a litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury.” Massachusetts v. EPA, 549 U.S. 497, 517 (2007). “The party invoking federal jurisdiction bears the burden of establishing these elements.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Standing must be established even though the SDWA provides an expansive avenue for petitions for review. See Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 487 n.24 (1982) (“Neither the Administrative Procedure Act, nor any other congressional enactment, can lower the threshold requirements of standing under Art. III.”); see also Am. Forest & Paper Ass’n v. U.S. EPA, 154 F.3d 1155, 1158 (10th Cir. 1998).

Here, only the “injury in fact” element is in dispute. The issue is whether HRI has suffered “an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (quotations, citations omitted). HRI argues that the EPA Determination burdens HRI with the “cost of compliance with Federal regulations” and “prohibits HRI from renewing its UIC permit previously obtained from the State.” (Pet’r Reply at 7, 8.) In other words, to proceed with its mining plans, HRI must expend the funds necessary to comply with the federal UIC regime.

We determine that the outlay of funds necessary to secure a UIC permit under the EPA-administered program constitutes an injury in fact. See Nat’l Collegiate Athletic Ass’n v. Califano, 622 F.2d 1382, 1386 (10th Cir. 1980) (“[O]ut-of-pocket cost to a business of obeying a new rule of government, or the unwanted result of the government rule whether or not [there was an associated] pecuniary loss” suffices as an “injury in fact.” (citation omitted)). EPA has acknowledged “that requiring a federal permit for Section 8 will be disruptive to some degree, especially since NMED and HRI have assumed until recently that the NMED-issued permit would be effective . . . .” (R. doc. 13b at 97.) In addition to being disruptive, the permitting process could well be very expensive, inflicting an economic injury that surely confers standing on HRI. See Califano, 622 F.2d at 1389 (“[T]he cost of obeying the regulations constitutes injury.”); see also Sac & Fox Nation of Mo. v. Pierce, 213 F.3d 566, 573 (10th Cir. 2000) (allegations of “particularized imminent economic injury” suffice for “injury in fact” element). Thus, HRI has standing to pursue review in this court and we may exercise jurisdiction under 42 U.S.C. § 300j-7(a)(2).


B. Standard of Review

EPA’s determination that the Section 8 land is part of a dependent Indian community under § 1151(b) constitutes a determination that EPA has jurisdiction, under the SDWA, to regulate underground injections on that land.11 Therefore, we review the Land Status Determination “‘to ascertain whether the [jurisdictional] decision has an adequate basis in law.’” City of Fort Morgan v. Fed. Energy Regulatory Comm’n, 181 F.3d 1155, 1159 (10th Cir. 1999) (quoting Cascade Natural Gas Corp. v. Fed. Energy Regulatory Comm’n, 955 F.2d 1412, 1415 (10th Cir. 1992) (further quotation omitted)). In our analysis of EPA’s jurisdictional determination, “we are under no obligation to defer to the agency’s legal conclusions.” Id. (quotation omitted). See also Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir. 2005) (explaining that this court reviews an agency’s legal conclusions de novo).

Even if Chevron deference does broadly apply to agencies’ interpretations of their own jurisdiction and authority, such deference would not be appropriate in this case. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–44 (1984). “In Chevron, [the Supreme Court] held that ambiguities in statutes within an agency’s jurisdiction to administer are delegations of authority to the agency to fill the statutory gap in reasonable fashion.” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005) (emphasis added). Here, Congress has delegated to EPA the authority to administer the SDWA; it has never delegated to EPA the authority to administer § 1151. Cf. Kansas v. United States, 249 F.3d 1213, 1218–21, 1228–29 (10th Cir. 2001) (applying Chevron to the National Indian Gaming Commission’s interpretation of the term “Indian lands” within the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2702–2721, a statute the agency was charged with administering).

Furthermore, while EPA’s determination of Section 8's land status involved an interpretation of one of its own regulations rather than of statutory language in the SDWA, courts do not defer to agency interpretations of regulations that merely “restate the terms of [a] statute.” Gonzales v. Oregon, 546 U.S. 243, 257 (2006). “[T]he existence of [such] a parroting regulation does not change the fact that the question here is not the meaning of the regulation but the meaning of the statute.” Id.

Thus, in ascertaining here whether the Land Status Determination “has an adequate basis in law,” City of Fort Morgan, 181 F.3d at 1159, we do not defer to EPA’s legal conclusions as to the Indian country status of the Section 8 land. See HRI, 198 F.3d at 1236 (noting that the agency’s “jurisdiction under federal Indian law” presents a “purely legal issue[]”). We examine “an agency’s factual findings to see if they are supported by reasonable, substantial and probative evidence considering the record as a whole.” Turgerel v. Mukasey, 513 F.3d 1202, 1205 (10th Cir. 2008) (quotation omitted). See also Quivira Mining Co. v. U.S. EPA, 765 F.2d 126, 128 (10th Cir. 1985) (applying the substantial evidence test to agency “determinations of fact [that] are ‘jurisdictional’”).

C. Merits

EPA regulations promulgated under the SDWA define “Indian lands” as “‘Indian country’ as defined in 18 U.S.C. 1151.” 40 C.F.R. § 144.3. The parties agree that only § 1151(b) is pertinent. Therefore, the central issue here is whether EPA’s Land Status Determination—the agency’s conclusion that the Section 8 land is within a dependent Indian community as defined in § 1151(b)12—has “an adequate basis in law,” City of Fort Morgan, 181 F.3d at 1159. Section 1151(b) defines Indian country as “all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state.” 18 U.S.C. § 1151(b) (emphasis added). In Alaska v. Native Village of Venetie Tribal Government (“Venetie”), 522 U.S. 520 (1998), the Supreme Court determined that the term “dependent Indian communities” refers to a limited category of Indian lands that are neither reservations nor allotments, and that satisfy two requirements—first, they must have been set aside by the Federal Government for use of the Indians as Indian land; second, they must be under federal superintendence.

522 U.S. at 527 (emphasis added).13 The first “requirement guarantees that the land is actually occupied by an Indian community,” while the second “ensures that the community is dependent on the federal government such that the federal government and the Indians, rather than the states, exercise primary jurisdiction.” United States v. Arrieta, 436 F.3d 1246, 1250 (10th Cir. 2006).

Before reaching the two Venetie requirements, however, our precedents compel us to identify the appropriate “community of reference.” See HRI, 198 F.3d at 1248 (“[N]othing in Venetie speaks to the propriety of the first element of [the Watchman] test—determination of the proper community of reference.”).

The Watchman test adopted in the Tenth Circuit involved two inquiries. First, the court identified the appropriate community of reference. 52 F.3d at 1543–44. Second, the court used four factors to determine whether that community of reference “constitutes a dependent Indian community under 18 U.S.C. § 1151(b).” Id. at 1545. Those factors included (1) whether the United States has retained “title to the lands which it permits the Indians to occupy” and “authority to enact regulations and protective laws respecting this territory,”; (2) “the nature of the area in question, the relationship of the inhabitants in the area to Indian tribes and to the federal government, and the established practice of government agencies toward the area,”; (3) whether there is “an element of cohesiveness . . . manifested either by economic pursuits in the area, common interests, or needs of the inhabitants as supplied by that locality,”; and (4) “whether such lands have been set apart for the use, occupancy and protection of dependent Indian peoples.” Watchman, 52 F.3d at 1545 (quoting United States v. South Dakota, 665 F.2d 837, 839 (8th Cir. 1981)).

Although Venetie abrogated a Ninth Circuit test that embraced many of the same factors that are part of the Watchman test, the HRI court subsequently concluded that Venetie could not have abrogated Watchman’s threshold “community of reference” prong because the Venetie Court “was not even presented with the question of defining the proper means of determining a community of reference for analysis under § 1151(b).” HRI, 198 F.3d at 1249.

Thus, the HRI court noted that it was bound to apply Watchman’s community of reference test absent en banc review. Id.

The HRI court acknowledged, however, that Venetie had altered the second step of the Watchman inquiry. 198 F.3d at 1248; see also Arrieta, 436 F.3d at 1250 n.2. With the exception of the third Watchman factor—“an element of

cohesiveness”—those factors approximate the set-aside and superintendence requirements set forth in Venetie. Thus, we first determine the community of reference, and we then apply to that community of reference the set-aside and superintendence requirements established in Venetie to determine whether that area is a dependent Indian community. See HRI, 198 F.3d at 1248; Arrieta, 436 F.3d at 1250.14

To determine the appropriate community of reference, we follow the same general three-step procedure we developed before Venetie. First, we identify “the geographical definition of the area proposed as a community.” United States v. Adair, 111 F.3d 770, 774 (10th Cir. 1997); id. at 774 n.5 (“Generally, cases which result in dependent Indian community designation are areas exhibiting reasonably distinct boundaries.”). Second, we analyze “‘the status of the area in question as a community.’” Id. at 774 (quoting Watchman, 52 F.3d at 1543). Lastly, we consider “that locale or ‘community of reference within the context of the surrounding area.’” Id. (quoting Watchman, 52 F.3d at 1543–44).

HRI stridently disputes that Watchman’s “community of reference” test survived Venetie. However, as the first HRI panel noted, HRI and Arrieta, both decided after Venetie, determined that our “community of reference” test survived Venetie. Therefore, Tenth Circuit law on this matter is settled. See United States v. Meyers, 200 F.3d 715, 720 (10th Cir. 2000) (“doctrine of stare decisis” bars panel from overruling earlier decision of a panel of this court “absent en banc reconsideration or a superseding contrary decision by the Supreme Court” (quotation omitted)).

1. Community of Reference

EPA recognized that this circuit’s precedents require that before reaching the two Venetie prongs, the reviewing court or agency determine the appropriate community of reference. Having considered the three steps of the community of reference analysis, EPA concluded that the appropriate community of reference was the Church Rock Chapter. We see no reason to reject this conclusion. First, we agree with EPA’s finding that the Chapter has definite geographic boundaries. EPA included in the administrative record a map showing the contours of the Chapter. As EPA determined, the Section 8 land that HRI seeks to mine falls within these bounds.

Second, we consider whether EPA properly determined that the Chapter is a “community” under our caselaw. This factor evaluates “the existence of an element of cohesiveness” in the community. Watchman, 52 F.3d at 1544. Cohesiveness “can be manifested either by economic pursuits in the area, common interests, or needs of the inhabitants as supplied by that locality.” Id. The Chapter exhibits several of the indicia of a cohesive community that we have looked for in past cases. Demographically, the population is fairly homogenous: based on the most current U.S. Census data, 97% of the Chapter’s population are members of the Navajo Nation and the majority of the residents speak Navajo or other native languages. This indicates the presence of common interests. Cf. United States v. M.C., 311 F. Supp. 2d 1281, 1291 (D.N.M. 2004) (“[I]t is clear that a culturally cohesive community exists in the Iyanbito chapter [of the Navajo Nation] as a whole.”).

Moreover, the community is cohesive in terms of its economic pursuits. In keeping with tradition, many of the Chapter’s residents raise livestock and supplement their income with earnings from the sale of traditional crafts. Of course, other Chapter residents commute to Gallup for work, but the community remains centered on traditional means of earning a living. We note also that the Chapter, pursuant to its authority under the Navajo Local Government Act, addresses many of the health, welfare, and social needs of its residents. Compare Blatchford v. Sullivan, 904 F.2d 542, 549 (10th Cir. 1990) (noting that Yah-Ta- Hey denizens’ “eligibility for a variety of services flows . . . by virtue of their identification as part of the Navajo Nation, not by virtue” of their settlement in Yah-Ta-Hey). As EPA correctly concluded, the Chapter has “cohesiveness” such that we can consider it a community.

At the third step, we scrutinize EPA’s analysis of the Chapter “‘within the context of the surrounding area.’” Adair, 111 F.3d at 774 (quoting Watchman, 52 F.3d at 1543–44). This inquiry ensures that we do not artificially fragment a larger community or fuse a series of smaller communities in identifying the appropriate community of reference. Thus, we ask whether the locality is a separate “mini-society consisting of personal residences and an infrastructure.” Watchman, 52 F.3d at 1544; see also Adair, 111 F.3d at 775 (factoring in “paucity of institutions and services” available in area in question and the area’s “generalized dependency on surrounding areas” in rejecting that area’s status as a “community”). If an area “lacks the quality and quantity of activity and institutions which create infrastructure and, in turn, community,” then we will not consider it a distinct community. Adair, 111 F.3d at 775. Nonetheless, “a community cannot be expected to originate all or even most of the ‘needs, necessities, and wants of modern life.’” Id. (quoting Watchman, 52 F.3d at 1544).

As to the Chapter’s infrastructure, the DOI Opinion noted the fact that the Chapter has a collection of homes which are “either . . . organized into traditional family-based ‘camps’ of one to six homes or into low cost tribal housing developments.” (R. doc. 44 at 21.) There are over 800 homes on the Chapter’s land. Additionally, the Chapter “has a Head Start center, an elementary school, several churches, and a host of Chapter, tribal, and BIA services and facilities.” (Id. at 9.) While the Chapter’s infrastructure is not extensive, “a community cannot be expected to originate all or even most of the needs, necessities, and wants of modern life.” Adair, 111 F.3d at 775 (quotation omitted). This is all the more so for rural communities like the Chapter.

EPA acknowledged that many of the Chapter’s services are provided by the Navajo Nation, the state, or the federal government. Specifically, the Navajo Nation provides policing (although the Chapter makes up its own judicial district within the Nation), electricity, drinking water, wastewater treatment, and other utilities. Among other services, the federal government provides social services, natural resource management, grazing management and permitting, housing development, health services, economic development grants, law enforcement improvement grants, and education programs. And New Mexico services the main road through the Chapter, buses some Chapter students to school in Gallup, and also provides natural gas to the Chapter’s residents.

Nevertheless, EPA determined that the Chapter possessed sufficient distinctness under Watchman. Three critical factors support that conclusion. First, we note (as did EPA and DOI) that the Chapter “is a Navajo traditional rural community.” (R. doc. 44 at 9; see also id. at 21.) Self-sufficiency is not necessary for community status under our jurisprudence. That other entities provide the Chapter services is to be expected for a rural, economically disadvantaged community. Cf. Adair, 111 F.3d at 775.

Second, the Chapter is a distinct political entity under the Navajo Nation, which “performs similar functioning with respect to the health and welfare of its residents as those performed by a county or municipality in the state government system.” (R. doc. 44 at 8 (quoting Thriftway Mktg. Corp. v. State, 810 P.2d 349, 352 (N.M. Ct. App. 1990).) See 26 N.N.C. §§ 1 & 2.22 (authorizing Chapters to make decisions regarding local matters and provide for the health, safety and general welfare of their memberships). In this regard, the Chapter’s residents turn to the Chapter—and particularly the Chapter House—to obtain services and to gather for social and political events. EPA found that 88% of the Chapter’s residents visit the Chapter House—the community’s social and political hub—and 98% of those residents do so at least monthly.

Third, under the Local Governance Act, the Chapter has developed a Chapter planning initiative and land use plan. The land use plan, issued in November 2002, provides further evidence that the community is distinct. The document captures the specific concerns and goals of the Chapter community in the context of a plan to add and update housing on Chapter land for Chapter residents. These factors are sufficient to distinguish the Chapter as a community distinct from both the Navajo Nation more broadly and the Gallup community. In sum, we cannot find fault with EPA’s determination that the Church Rock Chapter is the appropriate community of reference.

For its part, HRI argues that EPA erred in fixing on the Chapter as the community of reference. It asserts that under Venetie we may look only at the Section 8 land.15 However, our precedent bars us from deeming the Section 8 land the community of reference.16 See Arrieta, 436 F.3d at 1250; HRI, 198 F.3d at 1249; Watchman, 52 F.3d at 1542–43. Alternatively, HRI argues that Venetie abrogated the community of reference test entirely, replacing Watchman with a bright-line test involving only the set-aside and superintendence requirements. HRI points to the plain language of Venetie and also to the policy ramifications of our community of reference test.

HRI notes that the Venetie Court twice touched on the issue of whether to gauge a “community” under § 1151(b) by the people on the land or the land itself. First, the Court expounded, “the Federal Government must take some action setting apart the land for the use of the Indians ‘as such,’ and . . . it is the land in question, and not merely the Indian tribe inhabiting it, that must be under the superintendence of the Federal Government.” Venetie, 522 U.S. at 531 n.5 (emphasis in original). With this clarification, the Court rejected the syllogism that because all “[f]ederally recognized tribes” are under the superintendence of the government, all lands owned by those tribes meet the second requirement. Id.

Second, and in the same vein, the Court noted that its “Indian country precedents . . . do not suggest that the mere provision of ‘desperately needed’ social programs can support a finding of Indian country.” Id. at 534. That is, the federal government’s role in providing “health, education, and welfare benefits” was not an indicator “of active federal control over the Tribe’s land sufficient to support a finding of federal superintendence.” Id. (emphasis added).

Thus, HRI reasons that as a legal matter, the Venetie analysis focuses on the land in question—here, the Section 8 land—and not the Indian community encompassing that land. As a policy matter, HRI also argues that the community of reference test causes confusion about jurisdictional matters. In HRI’s estimate, the test makes Indian country a black-hole, pulling in non-Indian lands that happen to lie near a sufficiently cohesive and distinct Indian community. HRI and New Mexico, in its amicus brief, point out that this is especially problematic in the “checkerboard” region of northwestern New Mexico. Finally, HRI also suggests that this case implicates the ability of Indian tribes to regulate the affairs of non-Indians on non-Indian fee land. Cf. Plains Commerce Bank v. Long Family Land & Cattle Co., 128 S. Ct. 2709, 2718–19 (2008).

However, HRI was handed down after Venetie and concluded that Venetie had not abrogated the community of reference test. See HRI, 198 F.3d at 1249. The Arrieta court subsequently relied on that holding, at least implicitly. See Arrieta, 436 F.3d at 1250 & n.2. Regardless of the merits of HRI’s arguments, we lack the authority to overturn Watchman, HRI, and Arrieta. See Meyers, 200 F.3d at 720.17

As regards HRI’s and the Dissent’s concern that the community of reference test as we apply it here renders Indian country a “black-hole” (Dissent at 6 & n.3), we emphasize that our holding is narrow and restricted to the facts of this case. We do not hold that any land within the geographical boundaries of a political subdivision of a tribe necessarily has Indian country status; rather, we simply hold that on the facts in the record, the Church Rock Chapter constitutes a dependent Indian community under § 1151(b).

Furthermore, it is worth remembering that Congress exercises plenary power over Indian affairs, and thus “may restrict the retained sovereign powers of the Indian tribes.” Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463, 501 (1979); see also MacArthur v. San Juan County, 497 F.3d 1057, 1067–68 (10th Cir. 2007). Thus, should a tribe overreach in an attempt to “define the boundaries of Indian country outside the . . . reservation” (Dissent at 6), there would be two critical checks on such an attempt: first, factspecific review by the federal courts, which would be alert to sham extensions of tribal “communities”; and second, the plenary power of Congress, which extends not only to the definition of “Indian country,” but also to the manner in which tribes create or change their political subdivisions.

2. Set-Aside Requirement

Turning now to the Venetie requirements, we ask first whether the Chapter was set aside by the federal government for the use by the Indians as Indian land. See Arrieta, 436 F.3d at 1250 (“We examine the entire Indian community . . . to ascertain whether the federal set-aside . . . requirement[] [is] satisfied.”). “[L]and is ‘validly set apart for the use of Indians as such’ only if the federal government takes some action indicating that the land is designated for use by Indians.” Buzzard v. Okla. Tax Comm’n, 992 F.2d 1073, 1076 (10th Cir. 1993); see also Venetie, 522 U.S. at 531 n.5.

In accord with the DOI Opinion, EPA concluded that the set-aside requirement was met in this case. The administrative record supports this conclusion. As explained above, the checkerboard pattern of land ownership in this corner of New Mexico is a vestige of land grants to the railroads. In the late 1920s, the federal government purchased the odd-numbered parcels in this area from the Santa Fe Pacific Railroad Company, as well as some of the evennumbered parcels. See HRI, 198 F.3d at 1251–52 (discussing Act of 1928). The government placed the odd-numbered parcels of land into trust for the Navajo Nation and allocated the remainder as allotments to individual Navajos. As a result, 78% of the Chapter land was set aside for the Navajo Nation or individual Navajos by the federal government. See HRI, 198 F.3d at 1252 (“The congressional directive to purchase railroad lands for the benefit of the Navajo is sufficiently clear so that, once it is evident that the lands in question were purchased . . . and are held in trust for the Navajo, the lands satisfy the set-aside element . . . .”); cf. Narragansett Indian Tribe of R.I. v. Narragansett Elec. Co., 89 F.3d 908, 920 (1st Cir. 1996) (applying set-aside test—albeit pre-Venetie—and noting, “[t]he considerations made in the trust process demonstrate that when the federal government agrees to hold land in trust, it is prepared to exert jurisdiction over the land” (quotation omitted)).18 As such, we determine EPA did not err in this regard.

3. Superintendence Requirement

Lastly, we assess whether the Chapter is “dependent on the federal government such that the federal government and the Indians, rather than the states, exercise primary jurisdiction.” Arrieta, 436 F.3d at 1250. Both DOI and EPA determined that the Chapter is superintended by the federal government. Again, in light of the administrative record, EPA’s conclusion has an adequate basis in law. See City of Fort Morgan, 181 F.3d at 1159.

“Superintendency over the land requires the active involvement of the federal government.” Buzzard, 992 F.2d at 1076. For example, the Buzzard court explained that in McGowan—one of the three cases codified in 18 U.S.C. § 1151—the federal government’s “involvement was shown . . . by the federal government’s retention of title to the land and its regulation of activities [on the land].” Id.; see also United States v. Roberts, 185 F.3d 1125, 1132–33 (10th Cir. 1999) (factoring in trust status of Indian land in superintendency analysis).

On the other hand, the Venetie Court noted that its “Indian country precedents . . . do not suggest that the mere provision of ‘desperately needed’ social programs can support a finding of Indian country.” 522 U.S. at 534. Providing “health, education, and welfare benefits” alone does not amount to “active federal control over the Tribe’s land sufficient to support a finding of federal superintendence.” Id. (emphasis added); cf. Blatchford, 904 F.2d at 549 (“The federal government’s relationship with the Yah-Ta-Hey community is not with the community qua community . . . [but with] the approximately 350 Indians who happen to live in the Yah-Ta-Hey area.”).

Here, the government continues to retain title to 92% of the property in the Chapter, superintending that land for the benefit of the Navajo Nation, its members, and/or individual Navajo allottees. Additionally, as the Navajo Nation’s commentary noted, “[t]here is no significant difference in the way the United States interacts with the Church Rock Chapter than the way it interacts with Chapters in the Navajo Reservation proper.” (R. docs. 13a at 13; 13b at 133.) HRI does not controvert this factual assertion. Indeed, in addition to providing various health, education, and welfare benefits, see Venetie, 522 U.S. at 534, BIA “is responsible for protecting Navajo Nation trust lands, natural resources, and water rights, and administering various trust benefits on behalf of the [Chapter] members” (R. doc. 44 at 12). We would be hard-pressed to argue that the government does not superintend the reservations. It follows, then, that the government superintends the Chapter. EPA correctly concluded that the Chapter community “qua community,” see Blatchford, 904 F.2d at 549, is superintended by the federal government.

* * *

See: http://www.ca10.uscourts.gov/opinions/07/07-9506.pdf

Outcome: Under our hybrid Watchman/Venetie test, EPA permissibly determined that the Section 8 land falls within a dependent Indian community. Thus, we DENY HRI’s Petition for Review.19

Plaintiff's Experts:

Defendant's Experts:

Comments: