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August 7, 2019  |  Written by Richard S. Deitchman

Tribal Sovereign Immunity: Ninth Circuit Dismisses Environmental Challenge to Navajo Coal Mining

In a decision with potentially far-reaching implications for future litigation affecting tribal property, the Ninth Circuit dismissed on sovereign immunity grounds an environmental challenge to reauthorization of coal mining activities on land reserved to the Navajo Nation.  The unanimous decision in Dine Citizens Against Ruining Our Environment v. BIA (Dine Citizens) was issued on July 29, 2019.  It held that environmental plaintiffs’ lawsuit against the United States alleging violations of the Endangered Species Act (ESA) and National Environmental Policy Act (NEPA) could not proceed.  Because the Navajo Transitional Energy Company (NTEC), an entity wholly owned by the Navajo Nation and the owner of the mine at issue in the litigation, was a required party, it could not be joined due to tribal sovereign immunity, and so the case was dismissed.  The Ninth Circuit’s decision includes a thorough review of case law on the subject, underscoring the fact-specific inquiry required for the careful identification of the tribal interest at stake in any given suit.  Based on the circumstances, including the Navajo Nation’s ownership of the mine at issue, the mine’s role as a key source of tribal revenue, and the inability to join NTEC, the Ninth Circuit dismissed the suit.  A copy of the decision is available here.

The Navajo Mine is a 33,000-acre strip mine located on Navajo land in New Mexico.  The Four Corners Power Plant, owned by non-tribal entities, is also located on tribal land and buys coal exclusively from the mine.  The mine is a key source of revenue for the tribe, generating between $40-60 million per year.  In 2011, the Navajo Nation and the power plant operators amended the lease governing power plant operations, causing the need for certain approvals from the Office of Surface Mining Reclamation Enforcement, Bureau of Indian Affairs, and Bureau of Land Management.  This triggered an ESA consultation, resulting in approval of the amended lease after the issuance of a non-jeopardy biological opinion.

A coalition of tribal, regional, and national conservation organizations challenged the federal reauthorization of Navajo coal mining activities under both the ESA and NEPA.  NTEC was not named in the lawsuit, but filed a motion to intervene for the limited purpose of filing a motion to dismiss on the grounds that it was a required party that could not be joined due to tribal sovereign immunity.  The trial court granted the motion to dismiss and plaintiffs appealed.

The Ninth Circuit’s opinion includes both the determination whether NTEC is a required party, and then whether NTEC may feasibly be joined.  With respect to whether NTEC has a legally protected interest in the subject matter of the litigation, the Court conducted a “practical” and “fact specific” inquiry.  The Court found that NTEC, an “arm” of the Navajo Nation, has a legally protected interest in the case.  If plaintiffs succeeded in the challenge to agency action, NTEC’s interest in the existing lease and rights-of-way would be impaired.  Moreover, if the mine could not operate, NTEC would lose a substantial source of revenue.  The Court then determined that no existing party could adequately represent NTEC because no party shared NTEC’s sovereign interest in controlling its own resources and continued operation of the mine and financial support that it provides.  Consequently, the Court found that NTEC is a required party that must be joined, if feasible.

The Ninth Circuit then concluded that NTEC could not feasibly be joined due to tribal sovereign immunity.  Applying the four factors set forth in Federal Rule of Civil Procedure 19(b) (Rule 19(b)), the Ninth Circuit further concluded that the case could not proceed in the absence of NTEC.  The Court found that NTEC would be prejudiced if plaintiffs were to prevail (e.g., potential loss of millions of dollars in revenue from the mine), and the Court lacked the ability to shape relief so as to avoid prejudice (i.e., even on a remand, any relief would require the federal agencies to impose additional restrictions on the mine).  The Ninth Circuit further found that dismissal was proper even if plaintiffs lack an alternate remedy or forum for relief, elevating the tribal interest in immunity above the lack of an available remedy for plaintiffs.

Dine Citizens offers a potential sovereign immunity hammer to tribes seeking dismissal of litigation that implicates tribal property.  Based on the specific factual circumstances, including the Navajo Nation’s ownership of the mine and reliance on mine revenue, the Ninth Circuit balanced the Rule 19(b) factors in favor of dismissal based on tribal sovereign immunity.  The Court noted that these issues include “few categorical rules,” and are necessarily case-specific.  Nonetheless, Dine Citizens sets forth a key guidepost for future tribal sovereign immunity analyses, and potential harsh results plaintiffs can face when the subject matter of litigation concerns tribal-owned property.

For more information on this case, please contact Rich Deitchman at (916) 446 7979 or rdeitchman@somachlaw.com.

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