FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DINE CITIZENS AGAINST RUINING 

OUR ENVIRONMENT; SAN JUAN 

CITIZENS ALLIANCE; AMIGOS 

BRAVOS; SIERRA CLUB; CENTER FOR 

BIOLOGICAL DIVERSITY,

Plaintiffs-Appellants,

v.

BUREAU OF INDIAN AFFAIRS; UNITED 

STATES DEPARTMENT OF INTERIOR;

UNITED STATES OFFICE OF SURFACE 

MINING RECLAMATION AND 

ENFORCEMENT; UNITED STATES 

BUREAU OF LAND MANAGEMENT;

DAVID BERNHARDT,

* in his official 

capacity as Secretary of the U.S. 

Department of Interior; UNITED 

STATES FISH AND WILDLIFE SERVICE,

Defendants-Appellees,

ARIZONA PUBLIC SERVICE 

COMPANY; NAVAJO TRANSITIONAL 

ENERGY COMPANY LLC,

Intervenor-Defendants-Appellees.

No. 17-17320

D.C. No.

3:16-cv-08077-

SPL

OPINION

 * David Bernhardt has been substituted for his predecessor, Sally 

Jewell, under Fed. R. App. P. 43(c)(2).
2 DCAR V. BIA

Appeal from the United States District Court

for the District of Arizona

Steven Paul Logan, District Judge, Presiding

Argued and Submitted March 7, 2019

Phoenix, Arizona

Filed July 29, 2019

Before: Sandra S. Ikuta and Michelle T. Friedland, Circuit 

Judges, and Frederic Block,** District Judge.

Opinion by Judge Friedland

SUMMARY***

Joinder / Tribal Sovereign Immunity

The panel affirmed the district court’s dismissal, 

pursuant to Federal Rules of Civil Procedure 19 and 

12(b)(7), of an action brought by a coalition of tribal, 

regional, and national conservation organizations who sued 

the United States 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. 

 ** The Honorable Frederic Block, United States District Judge for 

the Eastern District of New York, sitting by designation.

*** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
DCAR V. BIA 3

Plaintiffs alleged that the agency actions violated the 

Endangered Species Act and the National Environmental 

Policy Act. The Navajo Transitional Energy Company, a 

corporation wholly owned by the Navajo Nation that owns 

the Navajo Mine, intervened in the action for the limited 

purpose of moving to dismiss under Rules 19 and 12(b)(7). 

The Navajo Transitional Energy Company asserted that it 

was a required party but that it could not be joined due to 

tribal sovereign immunity, and that the lawsuit could not 

proceed without it. 

The panel held that the Navajo Transitional Energy 

Company has a legally protected interest in the subject 

matter of this suit that would be impaired in its absence. The 

panel reasoned that if plaintiffs succeeded in their challenge 

and the agency actions were vacated, the Navajo 

Transitional Energy Company’s interest in the existing 

lease, rights-of-way, and surface mining permits would be 

impaired. Without the proper approvals, the Mine could not 

operate, and the Navajo Nation would lose a key source of 

revenue in which the Navajo Transitional Energy Company 

had already substantially invested.

The panel next held that because no other party to the 

litigation could adequately represent the Navajo Transitional 

Energy Company’s interests, the district court did not err in 

determining that the Company was a party that must be 

joined if feasible under Rule 19(a). The panel held that the 

Federal Defendants could not be counted on to adequately 

represent the Company’s interests because although the 

Federal Defendants had an interest in defending their 

decisions, their overriding interest must be in complying 

with environmental laws. This interest differed in a 

meaningful sense from the Navajo Transitional Energy 

Company’s and the Navajo Nation’s sovereign interest in 
4 DCAR V. BIA

ensuring that the Mine and the Four Corners Power Plant, 

which buys coals exclusively from the Mine, continued to 

operate and provide profits to the Navajo Nation. The panel 

further held that defendant, the Arizona Public Service 

Company, did not share the Navajo Nation’s sovereign 

interests in controlling its own resources and in the 

continued operation of the Mine and Power Plant.

The panel held that due to tribal sovereign immunity, the 

Navajo Transitional Energy Company could not feasibly be 

joined as a party to this litigation. The panel held that the 

district court correctly determined that the Navajo 

Transitional Energy Company was an “arm” of the Navajo 

Nation that enjoyed the Nation’s immunity from suit. The 

panel noted that the Company is wholly owned by the 

Navajo Nation and is organized pursuant to Navajo law. It 

was created specifically so that the Navajo Nation could 

purchase the Mine. Applying the Rule 19(b) factors, the 

panel held that the district court did not err in concluding that 

the litigation could not, in good conscience, continue in the 

Navajo Transitional Energy Company’s absence. 

The panel rejected plaintiffs’ and United States’ request 

to apply the “public rights” exception to hold that this 

litigation could continue in the National Transitional Energy

Company’s absence. The panel held that although plaintiffs 

nominally sought only a renewed National Environmental 

Policy Act and Endangered Species Act process, the 

implication of their claims was that Federal Defendants 

should not have approved the mining activities in their exact 

form. The result plaintiffs sought, therefore, threatened the 

National Transitional Energy Company’s legal entitlements, 

and accordingly, the public rights exception did not apply.
DCAR V. BIA 5

COUNSEL

Shiloh Silvan Hernandez (argued) and Matt Kenna, Western 

Environmental Law Center, Helena, Montana; Michael Saul, 

Center for Biological Diversity, Denver, Colorado; John 

Barth, Hygiene, Colorado; for Plaintiffs-Appellants.

Aukjen T. Ingraham (argued), Sara Kobak, Brien J. 

Flanagan, and Sarah Roubidoux Lawson, Schwabe,

Williamson & Wyatt P.C., Portland, Oregon, for IntervenorDefendant-Appellee Navajo Transitional Energy Company, 

LLC.

Stacey L. VanBelleghem (argued), Claudia M. O’Brien, 

Roman Martinez, and Devin M. O’Connor, Latham & 

Watkins LLP, Washington, D.C., for Intervenor-DefendantAppellee Arizona Public Service Company.

Rachel Heron (argued) and Andrew C. Mergen, Attorneys; 

Eric Grant, Deputy Assistant Attorney General; Jeffrey H. 

Wood, Acting Assistant Attorney General; United States 

Department of Justice, Washington, D.C.; for Amicus 

Curiae United States.

Ethel B. Branch, Attorney General; Paul Spruhan, Assistant 

Attorney General; Navajo Nation Department of Justice, 

Window Rock, Arizona; for Amicus Curiae Navajo Nation.
6 DCAR V. BIA

OPINION

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 party but 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.1 We affirm.

 1 At the parties’ joint request, we take judicial notice of the existence 

of the following documents and their contents: (1) Record of Decision 

for the Four Corners Power Plant and Navajo Mine Energy Project (July 

14, 2015); (2) Final Environmental Impact Statement for the Four 

Corners Power Plant and Navajo Mine Energy Project (May 1, 2015); 

and (3) Environmental Assessment and Finding of No Significant Impact 

for Navajo Mine Permit Transfer Application, Navajo Reservation, New 

Mexico (Nov. 2013). See Ariz. Libertarian Party v. Reagan, 798 F.3d 

723, 727 n.3 (9th Cir. 2015).
DCAR V. BIA 7

I.

A.

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 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.

The Power Plant is owned by several utility companies, 

including Public Service Company of New Mexico, Tucson 

Electric Company, Salt River Project, and IntervenorDefendant Arizona Public Service Company (“APS”). APS 

operates the Power Plant on behalf of all co-owners subject 

to a lease agreement, originally executed in 1960, with the 

Navajo Nation. Under the agreement, the Mine sells coal 
8 DCAR V. BIA

exclusively to the Power Plant, and the Power Plant buys its 

coal exclusively from the Mine. The Navajo Nation also 

authorizes easements for rights-of-way over Navajo lands 

for the Power Plant, and both the Navajo Nation and Hopi 

Tribe authorize easements for rights-of-way for power 

transmission lines that cross tribal lands.

The Mine and the Power Plant are key sources of revenue 

for the Navajo Nation. Under the federally approved leases 

and permits that are at issue in this case, operations at the 

Mine and the Power Plant are expected to generate between 

40 and 60 million dollars per year in revenue for the Navajo 

Nation.

B.

This lawsuit stems from changes and renewals to the 

lease agreements, rights-of-way, and government-issued 

permits under which the Mine and Power Plant operate.

In 2011, APS and the Navajo Nation amended the lease 

governing Power Plant operations, including by extending 

the term of the lease through 2041. BHP Billiton (which at 

the time still owned the Mine) then sought a renewal of the 

existing surface mining permit for the Mine and a new 

surface mining permit that would allow operations to move 

to an additional area within the Mine lease area.2

The lease amendment and accompanying rights-of-way 

could not go into effect, and the surface mining permits 

could not be granted, without approvals from several 

bureaus within the Department of the Interior. First, 

 2 When NTEC purchased the Mine from BHP Billiton, NTEC 

became the applicant for these permits.
DCAR V. BIA 9

OSMRE needed to approve the surface mining permits. 

Second, approval by the Bureau of Indian Affairs (“BIA”) 

was required to effectuate the lease amendment. Third, BIA 

had ultimate responsibility to grant the associated rights-ofway for the Power Plant facilities and transmission lines that 

the tribes had approved. Finally, approval of the Bureau of 

Land Management (“BLM”) was required to ensure 

adequate resource recovery and protection on the tribal 

lands.

OSMRE took the lead on considering the approval 

requests for the Mine. It cooperated with BIA and BLM, as 

well as with two additional bureaus within the Department 

of the Interior: the National Park Service and the Fish and 

Wildlife Service (“Fish and Wildlife”). OSMRE also 

coordinated with the U.S. Army Corps of Engineers, the U.S. 

Environmental Protection Agency, the Navajo Nation, and 

the Hopi Tribe on the review process.

OSMRE engaged in formal consultation with Fish and 

Wildlife, as required by the ESA when a project “may affect 

listed species or critical habitat.” 50 C.F.R. § 402.14(a). In 

April 2015, Fish and Wildlife completed formal consultation 

and issued a Biological Opinion concluding that the 

proposed action would not jeopardize the continued 

existence of any of the threatened and endangered species 

evaluated. Relying on Fish and Wildlife’s assessments in 

the Biological Opinion, OSMRE produced an 

Environmental Impact Statement (“EIS”) in May 2015.

OSMRE and BIA issued a Record of Decision in July 

2015, which included the approvals by OSMRE, BIA, and 

BLM necessary for the continued operation and expansion 

of the Mine. The Deputy Secretary of the Interior approved

the decisions of each of these bureaus within the Department 

of the Interior.
10 DCAR V. BIA

Since obtaining the required permits and approvals, APS 

and NTEC have made significant financial investments in 

the Power Plant and Mine, including by implementing 

conservation measures required by the Record of Decision. 

NTEC also moved mining operations into the areas 

designated in the new surface mining permit.3 Additionally, 

NTEC secured a new $115 million line of credit in July 2016 

that paid off the original note with which NTEC had 

purchased the Mine, and that provided additional capital. 

This line of credit is secured by, among other things, the 

Mine itself as an asset of NTEC.

C.

In April 2016, the plaintiff conservation organizations 

sued BIA, OSMRE, BLM, Fish and Wildlife, and the 

Department of the Interior, along with its Secretary 

(collectively, “Federal Defendants”). Plaintiffs challenged 

the opinions and approvals that authorized continued 

operations at the Mine and the Power Plant. Specifically, 

Plaintiffs alleged that Fish and Wildlife’s Biological 

Opinion violated the requirements of the ESA, and that BIA, 

OSMRE, and BLM violated the ESA by relying on the faulty 

Biological Opinion in deciding to approve the activities at 

issue. Plaintiffs also alleged that Federal Defendants 

violated NEPA by crafting an unlawfully narrow statement 

of purpose and need for the project in the EIS, failing to 

consider reasonable alternatives, and failing to take the 

requisite “hard look” at various impacts of the mining 

 3 Although the details of APS’s and NTEC’s investments and 

mining activities that have taken place since issuance of the Record of 

Decision are not before us, APS states in its brief that it and NTEC have 

invested hundreds of millions of dollars in upgrades, improvements, and 

conservation measures in reliance on the Record of Decision. Plaintiffs 

have not disputed this assertion.
DCAR V. BIA 11

complex. See Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 

374 (1989) (“NEPA . . . require[s] that agencies take a ‘hard 

look’ at the environmental effects of their planned action.”).

Plaintiffs sought: (1) declarations that Federal 

Defendants violated NEPA and the ESA; (2) orders setting 

aside Fish and Wildlife’s Biological Opinion and Federal 

Defendants’ Record of Decision and EIS and remanding the 

matter to the agencies for further analysis; (3) prospective 

injunctive relief prohibiting Fish and Wildlife from 

authorizing any adverse modification to critical habitat for, 

or take of, two types of fish; and (4) prospective injunctive 

relief prohibiting Federal Defendants from authorizing any 

element of the mining operations pending compliance with 

NEPA.

After Federal Defendants answered, APS filed a motion 

to intervene, which the district court granted. NTEC also 

sought to intervene in the action for the limited purpose of 

filing a motion to dismiss under Federal Rules of Civil 

Procedure 19 and 12(b)(7). The court granted NTEC’s 

motion to intervene as a matter of right as owner of the Mine, 

and NTEC then moved to dismiss. NTEC asserted that it 

was a required party because of its economic interest in the 

Mine, that it could not be joined due to tribal sovereign 

immunity, and that the action could not proceed in its 

absence. Even though dismissal would have left their 

decisions intact, Federal Defendants opposed NTEC’s 

motion to dismiss, arguing that the federal government was 

the only party required to defend an action seeking to enforce 

compliance with NEPA and the ESA.

The district court granted NTEC’s motion to dismiss. 

The court concluded that NTEC had a legally protected 

interest in the subject matter of this suit, because the “relief 

Plaintiffs seek could directly affect the Navajo Nation 
12 DCAR V. BIA

(acting through its corporation, Intervenor-Defendant 

NTEC) by disrupting its ‘interests in [its] lease agreements 

and the ability to obtain the bargained-for royalties and 

jobs.’” The court held that Federal Defendants could not 

adequately represent NTEC’s interest in the litigation, 

because although the agencies had an interest in defending 

their analyses and decisions, “NTEC’s interests in the 

outcome of this case far exceed” those of the agencies. The 

court observed that, although NTEC’s interests were 

currently aligned with those of Federal Defendants, there 

could be a “later divergence of interests” during the course 

of the litigation. The court further concluded that NTEC 

could not be joined due to the Navajo Nation’s sovereign 

immunity, and that the litigation could not, “in equity and 

good conscience,” continue in NTEC’s absence.

Plaintiffs timely appealed, arguing that NTEC did not 

have a legally protected interest in Federal Defendants’ 

compliance with environmental laws; that even if NTEC did 

have such an interest, Federal Defendants would adequately 

represent that interest; and that even if NTEC were a 

required party, the litigation could continue in its absence 

under the “public rights exception” to traditional joinder 

rules.

II.

We review a “district court’s decision to dismiss [an] 

action for failure to join” a required party for abuse of 

discretion, but we review its underlying legal conclusions de 

novo. Paiute-Shoshone Indians of Bishop Cmty. of Bishop 

Colony, Cal. v. City of Los Angeles, 637 F.3d 993, 997 (9th 
DCAR V. BIA 13

Cir. 2011).4 When reviewing an order dismissing a case 

under Rule 12(b)(7) for failure to join a party, “we accept as 

true the allegations in Plaintiff[s’] complaint and draw all 

reasonable inferences in Plaintiff[s’] favor.” Id. at 996 n.1. 

We review de novo the question whether a tribe feasibly can 

be joined. E.E.O.C. v. Peabody W. Coal Co., 400 F.3d 774, 

778 (9th Cir. 2005).

III.

A person or entity is a “required party” and “must be 

joined” if feasible if either “in that [party]’s absence, the 

court cannot accord complete relief among existing parties”; 

or if “that [party] claims an interest relating to the subject of 

the action and is so situated that disposing of the action in 

the [party]’s absence may . . . as a practical matter impair or 

impede the [party]’s ability to protect the interest” or “leave 

an existing party subject to a substantial risk of incurring 

double, multiple, or otherwise inconsistent obligations 

because of the interest.” Fed. R. Civ. P. 19(a)(1). Under 

Rule 19, if the party “who is required to be joined if feasible 

cannot be joined, the court must determine whether, in 

equity and good conscience, the action should proceed 

among the existing parties or should be dismissed.” Fed. R. 

Civ. P. 19(b). If it cannot proceed, a motion to dismiss under 

Rule 12(b)(7) for failure to join a party is properly granted.5

 4 We need not decide here precisely which parts of the Rule 19 

analysis are underlying legal conclusions entitled to de novo review and 

which parts are entitled to abuse of discretion review, because even if we 

reviewed every component of the Rule 19 analysis here de novo, we 

would affirm the district court’s decision.

5 Before 2007, parties that are now called “required” under Rule 19 

were referred to as “necessary,” and parties without whom the litigation 
14 DCAR V. BIA

A.

NTEC argues that it is a required party that must be 

joined if feasible because: (1) it has a legally protected 

interest in the subject matter of this litigation, and 

(2) proceeding with the lawsuit in NTEC’s absence would 

impair that interest. See Fed. R. Civ. P. 19(a)(1)(B). We 

agree.

1.

In determining whether NTEC claims a legally protected 

interest in the subject matter of this suit, we must “carefully 

. . . identify [NTEC’s] interest at stake.” Cachil Dehe Band 

of Wintun Indians of the Colusa Indian Cmty. v. California, 

547 F.3d 962, 973 (9th Cir. 2008) (“Colusa”). “The inquiry 

under Rule 19(a) ‘is a practical one and fact specific,’” White 

v. Univ. of Cal., 765 F.3d 1010, 1026 (9th Cir. 2014) 

(quoting Makah Indian Tribe v. Verity, 910 F.2d 555, 558 

(9th Cir. 1990)), and “few categorical rules inform[] this 

inquiry,” Colusa, 547 F.3d at 970.

To satisfy Rule 19, an interest must be legally protected 

and must be “more than a financial stake.” Makah, 910 F.2d 

at 558. “[A]n interest that ‘arises from terms in bargained 

contracts’ may be protected, but . . . such an interest [must] 

be ‘substantial.’” Colusa, 547 F.3d at 970 (quoting Am. 

Greyhound Racing, Inc. v. Hull, 305 F.3d 1015, 1023 (9th 

Cir. 2002)). “[A]n absent party has no legally protected 

 could not, in good conscience, continue, were referred to as 

“indispensable.” See Republic of Philippines v. Pimentel, 553 U.S. 851, 

855–56 (2008). Rule 19 was revised in 2007, but the revisions were 

intended to be only “stylistic,” and the Supreme Court has interpreted 

them as such. Id. at 855.
DCAR V. BIA 15

interest at stake in a suit merely to enforce compliance with 

administrative procedures.” Id. at 971.

“If a legally protected interest exists, the court must 

further determine whether that interest will be impaired or 

impeded by the suit.” Makah, 910 F.2d at 558. “As a 

practical matter, an absent party’s ability to protect its 

interest will not be impaired by its absence from the suit 

where its interest will be adequately represented by existing 

parties to the suit.” Alto v. Black, 738 F.3d 1111, 1127 (9th 

Cir. 2013) (quoting Washington v. Daley, 173 F.3d 1158, 

1167 (9th Cir. 1999)). Three factors are relevant to whether 

an existing party may adequately represent an absent 

required party’s interests:

whether the interests of a present party to the 

suit are such that it will undoubtedly make all 

of the absent party’s arguments; whether the 

party is capable of and willing to make such 

arguments; and whether the absent party 

would offer any necessary element to the 

proceedings that the present parties would 

neglect.

Id. at 1127–28 (quotation marks omitted).

2.

Although an absent party has no legally protected 

interest at stake in a suit seeking only to enforce compliance 

with administrative procedures, our case law makes clear 

that an absent party may have a legally protected interest at 

stake in procedural claims where the effect of a plaintiff’s 

successful suit would be to impair a right already granted. 

Under that case law, NTEC has a legally protected interest 
16 DCAR V. BIA

in the subject matter of this suit that would be impaired in its 

absence.

In Northern Alaska Environmental Center v. Hodel, 

803 F.2d 466 (9th Cir. 1986), we held that absent miners 

with mining plans and access permits pending before (but 

not yet approved by) the National Park Service (“NPS”) did 

not have a legally protected interest in a suit brought by 

environmental groups seeking to enjoin NPS from approving 

such plans and permits until NPS complied with NEPA and 

NPS regulations. Id. at 469.6 We explained that “[t]he 

subject matter of th[e] dispute concern[ed] NPS procedures 

regarding mining plan approval,” and that although “all 

miners [were] interested in how stringent the requirements 

[would] be,” “miners with pending plans ha[d] no legal 

entitlement to any given set of procedures.” Id. (quotation 

marks omitted).

In Makah, we likewise held that absent tribes lacked a 

legally protected interest in a suit brought by the Makah 

Indian Tribe challenging the Secretary of Commerce’s ocean 

fishing allotment “[t]o the extent that the Makah [sought 

prospective injunctive] relief that would affect only the 

future conduct of the administrative process.” 910 F.2d at 

559 (emphasis added). We also held, however, that absent 

tribes did have a legally protected interest “to the extent the 

Makah [sought] a reallocation of [a particular prior year’s] 

harvest or challenge[d] the Secretary’s [prior] inter-tribal 

allocation decisions.” Id. We accordingly held that the suit 

could proceed but that “the scope of the relief available to 

the Makah on their procedural claims [was] narrow” and 

 6 We did not need to reach whether the miners had a legally 

protected interest in already approved plans, because we held that any 

claims related to those plans were moot. Hodel, 803 F.2d at 469 n.2.
DCAR V. BIA 17

limited to prospective relief relating to such future processes. 

Id.

Similarly, in Colusa, we held that absent tribes, whose 

gaming compacts with California provided for the operation 

of “gaming devices” but limited the number of state licenses 

for such devices, had legally protected interests in the 

licenses that they already held under the compacts. Still, we 

held that such interests would not be impaired by a lawsuit 

brought by another compact-holding tribe (Colusa) against 

California “[t]o the extent that Colusa [sought] prospective 

relief” relating to the issuance of future licenses, such as 

Colusa’s request for higher priority in the draw for licenses. 

547 F.3d at 974. We explained that “Rule 19 necessarily 

confine[d] the relief that [could] be granted on Colusa’s 

claims to remedies that [did] not invalidate the licenses that 

[had] already been issued to the absent . . . Tribes.” Id.

at 977.

In Kescoli v. Babbitt, 101 F.3d 1304 (9th Cir. 1996), by 

contrast, we affirmed dismissal of a lawsuit in which there 

were legally protected interests at stake that we concluded 

were threatened by the retroactive effect of the relief sought 

in the litigation. Specifically, we held that the Navajo Nation 

and Hopi Tribe both had a legally protected interest and were 

necessary parties to a Navajo Nation member’s suit 

challenging a settlement reached between those tribes and 

the government that modified special conditions required by 

a mining permit issued to a company that operated a mine 

under lease agreements with the two tribes. Id. at 1310. We 

reasoned that because the settlement dictated the conditions 

under which mining operations could be conducted, the 

litigation “could affect the amount of royalties received by 

the Navajo Nation and the Hopi Tribe and employment 

opportunities for their members.” Id. at 1309–10. We 
18 DCAR V. BIA

explained that, unlike the prospective claim in Makah, the 

plaintiff’s challenge to the settlement “could affect the 

Navajo Nation’s and the Hopi Tribe’s interests in their lease 

agreements and the ability to obtain the bargained-for 

royalties and jobs.” Id. at 1310.

Applying these precedents, NTEC has a legally protected 

interest in the subject matter of this action. Although 

Plaintiffs’ challenge is to Federal Defendants’ NEPA and 

ESA processes (rather than to anything that NTEC has 

done), it does not relate only to the agencies’ future

administrative process, but instead may have retroactive 

effects on approvals already granted for mining operations. 

If Plaintiffs succeeded in their challenge and the agency 

actions were vacated, NTEC’s interest in the existing lease, 

rights-of-way, and surface mining permits would be 

impaired. Without the proper approvals, the Mine could not 

operate, and the Navajo Nation would lose a key source of 

revenue in which NTEC has already substantially invested. 

This case is therefore like Kescoli, where we concluded that 

absent tribes were necessary because the litigation could 

affect already-negotiated lease agreements and expected 

jobs and revenue. And it is unlike either Makah or Colusa, 

in which we could tailor the scope of relief available to being 

prospective only, preventing any impairment to a legally 

protected interest.

3.

The question whether any existing party adequately 

represents NTEC’s interest in this litigation is closer, but we 

conclude that none does.

In White v. University of California, we affirmed a 

district court’s dismissal of a suit against the Department of 

the Interior under the Native American Graves Protection 
DCAR V. BIA 19

and Repatriation Act (“NAGPRA”) for failure to join absent 

tribes that we concluded could not be adequately represented 

by the existing defendant in the case. 765 F.3d. at 1015. 

White involved a custody dispute over human remains 

uncovered on land belonging to the University of California 

that was aboriginally occupied by members of the 

Kumeyaay Nation, which consists of several federally 

recognized tribes. Id. The University determined that it was 

required, under NAGPRA, to repatriate the remains to the 

Kumeyaay Cultural Repatriation Committee, which had 

requested repatriation. Id. at 1015–16. Several University 

professors sued to enjoin repatriation, and the district court 

dismissed the claim for failure to join the Repatriation 

Committee, which could not be joined due to tribal 

immunity. Id.

We affirmed, holding that absent Kumeyaay tribes and 

the Repatriation Committee had an interest that would be 

impaired if the suit proceeded in their absence. As we 

explained, if the plaintiffs “succeed[ed] in their efforts to 

enjoin transfer of the remains . . . then the claims of the 

Tribes and the Repatriation Committee [to the human 

remains] [would] be extinguished without the opportunity 

for them to be heard.” Id. at 1027. We held that even though 

the University had determined that NAGPRA obligated it to 

repatriate the remains to the Kumeyaay, “the University 

[could not] sufficiently represent the interests of the Tribes 

or Repatriation Committee” in the litigation, because the 

University’s and the absent tribes’ interests would “not 

necessarily remain aligned.” Id. The University’s interest 

and the absent tribes’ interest were of a different nature: the 

University had “a broad obligation to serve the interests of 

the people of California, rather than any particular subset, 

such as the people of the Kumeyaay tribes.” Id. We 

theorized that if, contrary to the University’s own 
20 DCAR V. BIA

assessment of its obligations under NAGPRA, “a court were 

to determine that the [] remains should not be transferred to 

the Kumeyaay under NAGPRA, it [was] questionable 

whether—perhaps even unlikely that—the University and 

the Kumeyaay would pursue the same next course of action.” 

Id. (emphasis added). We therefore upheld the district 

court’s determination that the Kumeyaay tribes and 

Repatriation Committee were necessary parties.

In Southwest Center for Biological Diversity v. Babbitt, 

150 F.3d 1152 (9th Cir. 1998), by contrast, we held that the 

government could adequately represent a tribe’s interest in 

litigation brought by an environmental organization 

challenging, under NEPA and the ESA, the Secretary of the 

Interior’s plan to begin using a new water storage facility. 

Id. at 1153. We recognized that the Salt River PimaMaricopa Indian Community (“Community”) had an interest 

in the facility’s “becoming available for use as soon as 

possible” to store water, and we concluded that this interest 

would be impaired if an injunction issued in the case. Id. 

But, we reasoned, the government “share[d] a strong interest 

in defeating [the] suit on the merits and ensuring that the 

[facility was] available for use as soon as possible.” Id. at 

1154. We held that this made the government an adequate 

representative of the Community’s interest. Id. at 1154. We 

also noted that although the government did not “share the 

Community’s interest in protecting [the Community’s] 

sovereignty,” there was no explanation of “how the 

Community’s sovereignty would be implicated” in the suit. 

Id. at 1154–55.

In Alto v. Black, we likewise held that the United States 

could represent a tribe’s interest in a suit challenging a BIA 

order upholding the tribe’s decision to disenroll certain 

individuals as members of the tribe. 738 F.3d at 1128. As 
DCAR V. BIA 21

we explained, the tribe’s own governing documents vested 

BIA with ultimate authority over the tribe’s membership 

decisions. Id. at 1115. We also relied on the government’s 

shared interest in defending its own decision, which it had 

already “vigorously defended,” and its obligation to protect 

tribal interests as part of its general “trust responsibility” to 

tribes. Id. at 1128 (citation omitted). The tribe had not 

“presented any arguments that it would offer . . . which [the 

government] ha[d] not or would not make.” Id.

The Tenth Circuit in Manygoats v. Kleppe, 558 F.2d 556 

(10th Cir. 1977), held, in contrast, that the government could 

not adequately represent a tribe’s interests. In Manygoats, 

the Navajo had granted Exxon Corporation the right to mine 

uranium on tribal lands, and the Secretary of the Interior 

approved the agreement after completing an EIS. Id. at 557. 

Individual Navajo tribal members sought to enjoin 

performance of the mining agreement between the tribe and 

Exxon, claiming that the EIS was inadequate under NEPA. 

Id. The Tenth Circuit held that the Secretary of the Interior 

could not adequately represent the absent tribe because 

“[t]he Secretary must act in accord with the obligations 

imposed by NEPA,” and the environmental goals of that 

statute were “not necessarily coincidental with the interest of 

the Tribe in the benefits which the Exxon agreement 

provides.” Id. at 558.

Applying the lessons from these cases, we agree with the 

district court that Federal Defendants cannot be counted on 

to adequately represent NTEC’s interests. Although Federal 

Defendants have an interest in defending their decisions, 

their overriding interest, as it was in Manygoats, must be in 

complying with environmental laws such as NEPA and the 

ESA. This interest differs in a meaningful sense from 

NTEC’s and the Navajo Nation’s sovereign interest in 
22 DCAR V. BIA

ensuring that the Mine and Power Plant continue to operate 

and provide profits to the Navajo Nation. If the district court 

were to hold that NEPA or the ESA required more analysis 

that would delay mining activities, or that one of the federal 

agencies’ analyses underlying the approval was flawed, 

Federal Defendants’ interest might diverge from that of 

NTEC. As we suggested in White, a holding that one or both 

of these statutes required something other than what Federal 

Defendants have interpreted them to require could similarly 

change Federal Defendants’ planned actions, affecting the 

lease, rights-of-way, and permits at stake.

This case is unlike Southwest, because while Federal 

Defendants have an interest in defending their own analyses 

that formed the basis of the approvals at issue, here they do 

not share an interest in the outcome of the approvals—the 

continued operation of the Mine and Power Plant. And no 

party in Southwest had explained how the tribe’s 

“sovereignty would be implicated,” 150 F.3d at 1154, as the 

Navajo Nation has explained here. This case is also 

distinguishable from Alto, where the tribe had specifically 

granted BIA final decisionmaking authority over tribal 

membership issues, making it more plausible that the 

government would represent the tribe’s interest—or that the 

government’s interest and the tribe’s interest had become 

one and the same.

Plaintiffs resist the conclusion that no existing party can 

adequately represent NTEC’s interest, arguing that APS, as 

operator and part owner of the Power Plant, can do so even 

if Federal Defendants cannot. In Southwest, we noted that 

the presence of other cities that were financially invested in, 

and dependent for their water supply upon, the facility 

lessened the risk that the Community’s interest would be 

impaired. Here, APS shares at least some of NTEC’s and 
DCAR V. BIA 23

the Navajo Nation’s financial interest in the outcome of the 

case. But APS does not share the Navajo Nation’s sovereign

interest in controlling its own resources, and in the continued 

operation of the Mine and Power Plant and the financial 

support that such operation provides. The Navajo Nation’s 

interest is tied to its very ability to govern itself, sustain itself 

financially, and make decisions about its own natural 

resources. Because no other party to the litigation can 

adequately represent these interests, the district court did not 

err in determining that NTEC is a party that must be joined 

if feasible under Rule 19(a).

B.

Rule 19 requires us next to ask whether NTEC can 

feasibly be joined as a party to this litigation. Reviewing de 

novo, see Peabody W. Coal Co., 400 F.3d at 778, we hold 

that, due to tribal sovereign immunity, it cannot be.

“Tribal sovereign immunity protects Indian tribes from 

suit absent express authorization by Congress or clear waiver 

by the tribe. This immunity applies to the tribe’s commercial 

as well as governmental activities.” Cook v. AVI Casino 

Enters., Inc., 548 F.3d 718, 725 (9th Cir. 2008) (citation 

omitted). “[T]he settled law of our circuit is that tribal 

corporations acting as an arm of the tribe enjoy the same 

sovereign immunity granted to a tribe itself.” Id.

Here, it is undisputed that Congress has not abrogated 

any relevant aspect of the Navajo Nation’s tribal immunity, 

and that the Navajo Nation has not waived its immunity. The 

question is thus whether NTEC shares that immunity.

In Allen v. Gold Country Casino, 464 F.3d 1044 (9th Cir. 

2006), we had “little doubt that [a] Casino function[ed] as an 

arm of the Tribe” that owned and operated it, and that the 
24 DCAR V. BIA

casino therefore “enjoy[ed] the Tribe’s immunity from suit.” 

Id. at 1047. In that case, the casino had been authorized by 

tribal ordinance and an interstate gaming compact; the 

casino served to promote the tribe’s self-sufficiency, 

economic development, and employment opportunities; and 

the economic advantages of the casino inured to the benefit 

of the tribe such that “[i]mmunity of the Casino directly 

protect[ed] the sovereign Tribe’s treasury.” Id. at 1046–47; 

see also Cook, 548 F.3d at 726 (holding that a corporation 

created by a tribe through tribal ordinance and 

intergovernmental agreement that was wholly owned and 

managed by the tribe, and from which the benefits flowed to 

the tribe, enjoyed the tribe’s sovereign immunity).

Here, NTEC is wholly owned by the Navajo Nation and 

is organized pursuant to Navajo law. It was created 

specifically so that the Navajo Nation could purchase the 

Mine. NTEC’s profits go entirely to the Navajo Nation, and 

those profits support the Navajo Nation’s ability to govern 

and financially sustain itself. The district court was therefore 

correct that NTEC is an “arm” of the Navajo Nation that 

enjoys the Nation’s immunity from suit and cannot be joined 

to this action.7

 7 Plaintiffs argue that the court could order joinder of NTEC’s chief 

executive officer pursuant to the Ex parte Young doctrine. That doctrine 

“permits actions for prospective non-monetary relief against state or 

tribal officials in their official capacity to enjoin them from violating 

federal law, without the presence of the immune State or tribe.” Salt 

River Project Agric. Improvement & Power Dist. v. Lee, 672 F.3d 1176, 

1181 (9th Cir. 2012) (citing Ex parte Young, 209 U.S. 123 (1908)); see 

also Vann v. U.S. Dep’t of Interior, 701 F.3d 927 (D.C. Cir. 2012). But 

both Salt River and Vann, on which Plaintiffs rely in making this 

argument, involved claims against tribes as defendants, so it was possible 

for a tribal official, rather than the tribe itself, to be named as defendant 
DCAR V. BIA 25

C.

Because NTEC is a required party that cannot feasibly 

be joined, we must next determine “whether, in equity and 

good conscience, the action should proceed among the 

existing parties or should be dismissed.” Fed. R. Civ. P. 

19(b).

1.

To evaluate whether an action could fairly proceed 

without a required party, we consider the following factors:

(1) the extent to which a judgment rendered 

in the [party’s] absence might prejudice that 

[party] or the existing parties;

(2) the extent to which any prejudice could be 

lessened or avoided by:

(A) protective provisions in the 

judgment;

(B) shaping the relief; or

(C) other measures;

(3) whether a judgment rendered in the 

[party’s] absence would be adequate; and

 pursuant to Ex parte Young. Plaintiffs’ claims here are that Federal 

Defendants violated environmental laws—not that the Navajo Nation 

itself did. The Ex parte Young doctrine therefore has no role to play here.
26 DCAR V. BIA

(4) whether the plaintiff would have an 

adequate remedy if the action were dismissed 

for nonjoinder.

Fed. R. Civ. P. 19(b). The Rule 19(b) factors “are 

nonexclusive.” Republic of Philippines v. Pimentel, 

553 U.S. 851, 862 (2008).

In general, “[i]f no alternative forum exists, [a court] 

should be ‘extra cautious’ before dismissing an action.” 

Kescoli, 101 F.3d at 1311 (quoting Makah, 910 F.2d at 560). 

But “[i]f the necessary party is immune from suit, there may 

be ‘very little need for balancing Rule 19(b) factors because 

immunity itself may be viewed as the compelling factor.’” 

Id. (quoting Confederated Tribes v. Lujan, 928 F.2d 1496, 

1499 (9th Cir. 1991)); see also Am. Greyhound Racing, Inc., 

305 F.3d at 1025 (“[S]ome courts have held that sovereign 

immunity forecloses in favor of tribes the entire balancing 

process under Rule 19(b), but we have continued to follow 

the four-factor process even with immune tribes.”). Indeed, 

we have observed that there is a “wall of circuit authority” 

in favor of dismissing actions in which a necessary party 

cannot be joined due to tribal sovereign immunity—

“virtually all the cases to consider the question appear to 

dismiss under Rule 19, regardless of whether [an alternate] 

remedy is available, if the absent parties are Indian tribes 

invested with sovereign immunity.” White, 765 F.3d 

at 1028.

2.

Applying the Rule 19(b) factors, we hold that the district 

court did not err in concluding that the litigation could not, 

in good conscience, continue in NTEC’s absence.
DCAR V. BIA 27

Prejudice, the first factor in the Rule 19(b) analysis, 

“largely duplicates the consideration that made a party 

necessary under Rule 19(a),” Am. Greyhound Racing, Inc., 

305 F.3d at 1025, and clearly favors dismissal in this case. 

The Navajo Nation and NTEC would be prejudiced if this 

lawsuit were to proceed and Plaintiffs were to prevail—at 

stake is an estimated 40 to 60 million dollars per year in 

revenue for the Navajo Nation, as well as its ability to use its 

natural resources how it chooses.

The second factor, the court’s ability to shape relief so as 

to avoid prejudice, likewise favors dismissal. Although 

relief could be shaped to avoid prejudice in the short term, 

such as by remanding for further administrative review 

without vacating the permits and approval decisions in the 

meantime, the Navajo Nation inevitably would be prejudiced 

if Plaintiffs ultimately succeeded and if, after further NEPA 

and ESA processes, Federal Defendants were not able to 

come to the same decisions without imposing new 

restrictions or requirements on the Mine or Power Plant.

The third factor, on the other hand, weighs against 

dismissal. A judgment rendered in NTEC’s absence would 

be adequate and would not create conflicting obligations, 

because it is Federal Defendants’ duty, not NTEC’s, to 

comply with NEPA and the ESA.

The fourth factor depends on whether Plaintiffs would 

have an alternate remedy if this suit is dismissed. Were this 

suit dismissed, Plaintiffs would have no alternate forum in 

which to sue Federal Defendants for their alleged procedural 

violations under NEPA and the ESA. NTEC argues, 

however, that Plaintiffs may be able to “raise environmental 

claims in Navajo courts” under Navajo law.
28 DCAR V. BIA

We need not decide whether any alternate remedy is 

available in the Navajo Nation courts for the environmental 

concerns motivating Plaintiffs’ challenge to the mining 

operations at issue here. Even assuming that no alternate 

remedy exists, and that both the third and fourth factors 

therefore weigh against dismissal, we would hold that 

dismissal is proper. We have recognized that the lack of an 

alternative remedy “is a common consequence of sovereign 

immunity.” Id. Accordingly, “we have regularly held that 

the tribal interest in immunity overcomes the lack of an 

alternative remedy or forum for the plaintiffs.” Id. Mindful 

of the “wall of circuit authority” in favor of dismissing an 

action where a tribe is a necessary party, White, 765 F.3d 

at 1028, we agree with the district court that this litigation 

cannot, in good conscience, continue in NTEC’s absence.

3.

Finally, Plaintiffs and the United States urge us to apply 

the “public rights” exception to hold that this litigation can 

continue in NTEC’s absence.8 The public rights exception 

is a limited “exception to traditional joinder rules” under 

which a party, although necessary, will not be deemed 

“indispensable,” and the litigation may continue in the 

absence of that party. Conner v. Burford, 848 F.2d 1441, 

1459 (9th Cir. 1988). We hold that the exception does not 

apply here.

The public rights exception is reserved for litigation that 

“transcend[s] the private interests of the litigants and seek[s] 

 8 Federal Defendants did not file an answering brief; instead the 

United States filed a brief as amicus curiae arguing that “federal agencies 

and officers are normally the only necessary defendants in” federal suits 

challenging agency action. Answering briefs defending the grounds of 

the district court’s dismissal were filed by only NTEC and APS.
DCAR V. BIA 29

to vindicate a public right.” Kescoli, 101 F.3d at 1311. The 

public rights exception may apply in a case that could 

“adversely affect the absent parties’ interests,” but “the 

litigation must not ‘destroy the legal entitlements of the 

absent parties’” for the exception to apply. Id. (emphasis 

added) (quoting Conner, 848 F.2d at 1459).

The doctrine derives from the Supreme Court’s decision 

in National Licorice Co. v. N.L.R.B., 309 U.S. 350 (1940), 

in which the Court allowed a suit to proceed in the absence 

of necessary parties because it involved enforcement of 

public rights. In National Licorice, a company was the 

subject of a National Labor Relations Board (“NLRB”) 

action challenging as violative of federal labor laws 

contracts the company had procured from its employees. Id. 

at 351–56. The defendant company argued that those absent 

employees were necessary and indispensable parties to the 

NLRB action. Id. at 356. The Court held that the employees 

did not need to be joined because the case was “narrowly 

restricted to the protection and enforcement of public 

rights”—specifically, the public’s interest in “the prevention 

of unfair labor practices.” Id. at 363–64. Analogizing to 

actions brought by the government under the Sherman 

Antitrust Act or orders entered by the Federal Trade 

Commission, id. at 365–66, the Court held that “the public 

right was vindicated by restraining the unlawful actions of 

the defendant.” Id. at 366. It also reasoned that the absent 

employees’ legal entitlements would not be destroyed 

because the employees “were left free to assert such legal 

rights as they might have acquired under their contracts.” Id.

We applied the public rights exception to allow suit to 

proceed in Conner v. Burford, where the plaintiffs sued 

BLM alleging that its sale of oil and gas leases in two 

national forests violated NEPA and the ESA. 848 F.2d at 
30 DCAR V. BIA

1442–43. BLM had sold two different types of leases: for 

one type, lessees were prohibited “from occupying or using 

the surface of the leased land without further specific 

approval from . . . BLM”; for the other, the government was 

authorized to impose conditions on surface-disturbing 

activities, but not to altogether preclude such activities. Id. 

at 1444. During the ESA consultation process, Fish and 

Wildlife and the U.S. Forest Service decided to analyze the 

environmental effects of the lease sales only, and not those 

of post-leasing activities. Id. at 1444. The district court 

entered judgment in the plaintiffs’ favor, reasoning that 

NEPA required a comprehensive EIS that evaluated not only 

the sale of a lease but also “the cumulative effects of 

successive, interdependent steps culminating in oil and gas 

development and production.” Id. Several lessees attempted 

to intervene, arguing that they were necessary and 

indispensable parties. Id. at 1445.

Clarifying the district court’s order, we “enjoin[ed] the 

federal defendants from permitting any surface-disturbing 

activity to occur on any of the leases [of either type] until 

they ha[d] fully complied with NEPA and [the] ESA.” Id. at 

1461. We recognized that the contracts themselves, 

however, “were not invalidated and further actions 

construing rights under them [were] not precluded.” Id.

at 1460–61. We thus held that the only thing foreclosed by 

the district court’s judgment was the “lessees’ ability to get 

‘specific performance’ [on their contracts] until the 

government complie[d] with NEPA and the ESA,” which 

was “insufficient to make the lessees indispensable to [the] 

litigation.” Id. at 1461. The leaseholders still retained 

“many of the fundamental attributes of their contracts,” 

given that “significant economic value inheres in the 

exclusive right to engage in oil and gas activities, should any 

be allowed.” Id. Because “[t]he appellees’ litigation against 
DCAR V. BIA 31

the government [did] not purport to adjudicate the rights of 

current lessees,” but rather to “enforce the public right to 

administrative compliance with the environmental 

protection standards of NEPA and the ESA,” the public 

rights exception applied. Id. at 1460.

In Kescoli, by contrast, we declined to apply the public 

rights exception and thus affirmed dismissal of the suit. 101 

F.3d at 1312. We reasoned that “if the action proceeded in 

the absence of the Navajo Nation and the Hopi Tribe, the 

rights of their members under the lease agreements could be 

significantly affected.” Id. at 1311–12. “The litigation also 

threaten[ed] the Navajo Nation’s and the Hopi Tribe’s 

sovereignty by attempting to disrupt their ability to govern 

themselves and to determine what is in their best interests 

[by] balancing potential harm caused by the mining 

operations against the benefits of the royalty payments.” Id.

at 1312. The litigation therefore was “not limited to ensuring 

an agency’s future compliance with statutory procedures,” 

and was “not one in which the risk of prejudice to the Navajo 

Nation and the Hopi Tribe [was] nonexistent or minimal.” 

Id.

This case is more like Kescoli than Conner. Here, the 

leases and rights-of-way are valid only with approval by 

BIA. If the Record of Decision that granted such approval 

were vacated, then those agreements would be invalid, and 

NTEC would lose all associated legal rights. And, unlike in 

Conner where surface-disturbing activity had apparently not 

even been authorized or begun, the activities approved by 

the Record of Decision here are already taking place. This 

litigation therefore threatens to destroy NTEC’s existing 

legal entitlements. See Am. Greyhound Racing, Inc., 

305 F.3d at 1026 (rejecting application of the public rights 

exception, reasoning that the “litigation targeted the 
32 DCAR V. BIA

extension or renegotiation of the compacts themselves,” and 

did “not incidentally affect the gaming tribes in the course of 

enforcing some public right,” but rather was “aimed at the 

tribes and their gaming”); Kettle Range Conservation Grp. 

v. U.S. Bureau of Land Mgmt., 150 F.3d 1083, 1087 (9th Cir. 

1998) (distinguishing Conner and holding that where title to 

land transferred in a challenged transaction had already 

vested in private parties, an order declaring the land 

exchange void would destroy the parties’ legal entitlements, 

rendering the public rights exception inapplicable).

We acknowledge that Plaintiffs’ claims relate to public 

rights insofar as they challenge only Federal Defendants’ 

NEPA and ESA processes. We also recognize that the 

practical effect of this litigation on NTEC’s rights would 

depend on what, exactly, the outcome of the litigation would 

be if it proceeded. It is possible that, if the lawsuit continued, 

the district court might grant judgment in favor of Federal 

Defendants, or it might grant limited relief for Plaintiffs that 

would not substantially impact NTEC’s rights.

We believe, however, that the question at this stage must 

be whether the litigation threatens to destroy an absent 

party’s legal entitlements. See Kescoli, 101 F.3d at 1311–12 

(holding that the public rights exception was inapplicable in 

part because “if the action proceeded in the absence of [two 

tribes], the rights of their members under the lease 

agreements could be significantly affected” (emphasis 

added)); Shermoen v. United States, 982 F.2d 1312, 1319 

(9th Cir. 1992) (“Because of the threat to the absent tribes’ 

legal entitlements, and indeed to their sovereignty, posed by 

the present litigation, application of the public rights 

exception . . . would be inappropriate.”). Here, although 

Plaintiffs nominally seek only a renewed NEPA and ESA 

process, the implication of their claims is that Federal 
DCAR V. BIA 33

Defendants should not have approved the mining activities 

in their exact form. The result Plaintiffs seek, therefore, 

certainly threatens NTEC’s legal entitlements.

We also recognize, as the Tenth Circuit has pointed out, 

that refusing to apply the public rights exception arguably 

“produce[s] an anomalous result” in that “[n]o one, except 

[a] Tribe, could seek review of an environmental impact 

statement covering significant federal action relating to 

leases or agreements for development of natural resources 

on [that tribe’s] lands.” Manygoats, 558 F.2d at 559. Or, at 

least, no one could obtain such review unless the tribe were 

willing to waive its immunity and participate in the lawsuit. 

This result, however, is for Congress to address, should it see 

fit, as only Congress may abrogate tribal sovereign 

immunity. See Michigan v. Bay Mills Indian Cmty., 

572 U.S. 782, 790 (2014). It is undisputed that Congress has 

not done so here.

The public rights exception therefore does not apply.

III.

For the foregoing reasons, we AFFIRM.