Here is the opinion of the Tenth Circuit sitting en banc. Five judges dissented. [Updated link here.]
Here are the en banc supplemental briefs:
Navajo Nation Supplemental Brief
American Indian Law Profs Amicus Brief [The court denied the motion to file this amicus brief. See opinion at 25 n. 7]
Our posting on the panel decision is here.
BIG BAY, Mich. – As the top government official who oversees Great Lakes water quality stood on the edge of sacred Eagle Rock, overlooking a pristine expanse of the Yellow Dog Plains, she gained a better understanding about why the state-owned land is sacred to Michigan’s Ojibwa.
“I very much understand what their concerns are – and that is one of the things we are considering as we moved forward on this,” said Tinka Hyde, Water Division director for Environmental Protection Region 5. “We realize that Eagle Rock is of cultural and religious importance to the tribe.”
Hyde was one of three EPA regional bosses from Chicago and the agency’s tribal liaison for Michigan who were given a tour of the area May 13 by officials from the Keweenaw Bay Indian Community during a two-day visit to Michigan’s Upper Peninsula.
Members of numerous tribes including Ojibwa, Cherokee and Lakota had been camping at the base of Eagle Rock since April 23 in hopes of preventing Kennecott Eagle Minerals from building a nickel and copper sulfide mine – named the Eagle Project. At the company’s request, state and local police officers raided the encampment May 27 arresting two campers.
Under federal treaties, Ojibwa have rights to hunt, fish and gather on the state of Michigan owned land. The state leased the land to Kennecott with the understanding that all permits must be approved.
Hyde said any ruling the EPA makes about the withdrawal of state and federal permit applications by Kennecott subsidiaries will be based solely on environmental protection laws, primarily the 1974 Safe Drinking Water Act.
Here is the order (CA10 Order Granting En Banc Review), the earlier materials (here), the news report from Indianz, and here are the en banc petition stage materials:
EPA Opposition to En Banc Petition
A split panel of the Tenth Circuit concluded that the EPA was within its authority to find that a checkerboarded area of northwestern New Mexico was Indian Country for Safe Drinking Water Act purposes. Here is the opinion.
Here are just some of the many briefs filed in this case (I think I got all the important ones):
national-mining-assoc-amicus-brief
Turtle Talk 