A three-judge panel of the US Court of Appeals for the Seventh Circuit on Monday affirmed a lower court’s dismissal of a suit the Menominee tribe filed against the Environmental Protection Agency (EPA) and the Army Corps of Engineers, holding that the court cannot review the agencies’ actions.
A company called Aquila Resources applied to the state of Michigan for a dredge-and-fill permit under section 404 of the Clean Water Act which, would allow the company to fill wetlands along the Menominee River, which borders Michigan and Wisconsin. The Menominee tribe, located in Wisconsin, believes they came into existence along the river, and there are several sacred sites on the banks. The tribe wanted the agencies to revisit a 1984 decision in which they allowed the state of Michigan to issue the permits rather than the federal government, because at the time the river was not used for interstate commerce. Both agencies declined and informed the tribe that it would be up to Michigan to decide.
The tribe filed suit in district court, alleging that the agencies violated the Administrative Procedure Act by neglecting their responsibility to oversee permitting authority, calling the agencies decisions “arbitrary and capricious and contrary to law.” The lower court dismissed the suit, holding that it lacked the authority to review agencies decisions that are not “final agency actions.” The appeals court panel agreed, saying the agencies’ responses to the tribe’s request were informational in nature, merely repeating what the tribe already knew, that the 1984 decision put permitting authority into Michigan’s hands. “Because the Corps and EPA letters only reiterated the status quo, there was nothing for the district court (or now, us) to review,” the court concluded.
The panel did acknowledge that this decision will likely be “unsettling” for the tribe, and they criticized how the EPA especially handled the situation, as it responded to the tribe’s explicit and detailed letter with a six-sentence letter that addressed none of their concerns and merely offered to speak with the tribe by phone. The court was particularly troubled when the agencies “asserted for the first time at oral argument that the Tribe could have sought the re-quested relief by filing a petition for rulemaking under 5 U.S.C. § 553(e).” The court wondered why the agencies did not inform the tribe of that option in their initial letters, and while it might still be an option, the court thought it might be too late for a rulemaking procedure to affect the permit, which “further adds to [the court’s] sense that the Tribe got the runaround here.”
The tribe is continuing to pursue challenges to the mine through Michigan’s Administrative Hearing System, and should that fail they can proceed to the state courts, but at this point the federal court avenues have been exhausted.