Dine Citizens Against Ruining Our Env't v. BIA

Opinion

 [*847]  FRIEDLAND, Circuit Judge:

A coalition of tribal, regional, and national conservation organizations ("Plaintiffs") sued the U.S. Department of the Interior, its Secretary, and several bureaus within the agency, challenging a variety of agency actions that reauthorized coal mining activities on land reserved to the Navajo Nation. Plaintiffs alleged that these actions violated the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq., and the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. The Navajo Transitional Energy Company ("NTEC"), a corporation wholly owned by the Navajo Nation that owns the mine in question, intervened in the action for the limited purpose of moving to dismiss under Federal Rules of Civil Procedure 19 and 12(b)(7). NTEC argued that it was a required  [*848]  party but [**6]  that it could not be joined due to tribal sovereign immunity, and that the lawsuit could not proceed without it. The district court agreed with NTEC and dismissed the action.⁴ We affirm.

The Navajo Mine ("Mine") is a 33,000-acre strip mine. It produces coal from which the Four Corners Power Plant ("Power Plant") generates electricity. The Mine and Power Plant are both on tribal land of the Navajo Nation within New Mexico. The Mine operates pursuant to a surface mining permit issued by the Department of the Interior's Office of Surface Mining Reclamation and Enforcement ("OSMRE") under the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. § 1201 et seq. Transmission lines that distribute electricity from the Power Plant run west into Arizona through lands reserved to the Navajo Nation and Hopi Tribe. The Mine, Power Plant, and transmission lines were built in tandem and have operated since the early 1960s.

The Navajo Nation is a federally recognized Indian tribe with its seat of government in Arizona and territory spanning areas of Arizona, Utah, and New Mexico. For many years, the Navajo Nation granted a coal mining lease to BHP Billiton Navajo Coal Company ("BHP Billiton"), a private company [**7]  that owned and operated the Mine. In 2013, the Navajo Nation Council created the Navajo Transitional Energy Company (again, "NTEC") for the purpose of purchasing the Mine from BHP Billiton.

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