Environmental Law & Policy Alerts – Update from Somach Simmons & Dunn

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 was issued on July 29, 2019.  It held that environmental plaintiffs’ lawsuit against the United States alleging violations of the Endangered Species Act and National Environmental Policy Act 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…. Read More Written by Richard S. Deitchman