In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 19-1130

MENOMINEE INDIAN TRIBE OF WISCONSIN,

Plaintiff-Appellant,

v.

ENVIRONMENTAL PROTECTION AGENCY and UNITED STATES 

ARMY CORPS OF ENGINEERS, et al.

Defendants-Appellees,

and

AQUILA RESOURCES, INC.,

Intervening Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 1:18-cv-108 — William C. Griesbach, Judge.

____________________

ARGUED SEPTEMBER 5, 2019 — DECIDED JANUARY 27, 2020

____________________

Before SYKES, HAMILTON, and SCUDDER, Circuit Judges.

SCUDDER, Circuit Judge. For the Menominee Indian Tribe, 

the river that bears its name is a place of special importance. 
2 No. 19-1130

The Menominee River runs along the border between Northern Wisconsin and Michigan’s Upper Peninsula. According to 

its origin story, the Tribe came into existence along the banks 

of the River thousands of years ago. This birthplace contains 

artifacts and sacred sites of historic and cultural importance 

to the Tribe. All these years later, the Tribe returns to the 

riverbanks for ceremonies and celebrations. 

Sometime before 2017, the Tribe learned that Aquila Resources intended to embark on a mining project known as the 

Back Forty alongside the Menominee River and in close proximity to Wisconsin’s northeast border. Aquila successfully applied for several necessary permits from the state of Michigan. 

Concerned the project would disrupt and dislocate aspects of 

tribal life, the Tribe wrote letters to the Environmental Protection Agency and Army Corps of Engineers asking both agencies to reconsider its 1984 decision to allow Michigan, instead 

of the federal government, to issue certain permits under the 

Clean Water Act. The EPA and Army Corps responded not by 

revisiting the prior delegation of permitting authority but instead by informing the Tribe of what it already knew—that 

Michigan would decide whether to issue a so-called dredgeand-fill permit to authorize Aquila’s Back Forty project. 

The Tribe responded on two fronts—first by commencing 

an administrative proceeding in Michigan and second by filing suit in federal court in Wisconsin. The district court dismissed the Tribe’s complaint on the ground that it did not 

challenge any final action taken by the EPA or Army Corps. 

The court also denied the Tribe’s request to amend its complaint. Despite reservations about how the federal agencies 

responded to the Tribe’s concerns, we affirm. 
No. 19-1130 3

I

To open and operate the Back Forty mine, Aquila had to 

acquire several regulatory permits. The focus here is on Aquila’s need for a dredge-and-fill permit, which comes under 

Section 404 of the Clean Water Act, 33 U.S.C. § 1344, and allows its holder to fill wetlands. 

Section 404 regulation is not an entirely federal undertaking. Although the EPA and Army Corps are tasked with enforcing the Clean Water Act, Congress allows states to apply 

to assume Section 404 permitting authority over waters in 

their jurisdictions. See 33 U.S.C. § 1344(g)–(h). Michigan is one 

of only two states that has implemented a Section 404 permit 

program. See 40 C.F.R. § 233.70 (codifying Michigan’s assumption of dredge-and-fill permitting over certain waters).

When a state assumes permitting authority, the federal 

government is not removed from the Section 404 regulatory 

process altogether. The EPA maintains an oversight role reviewing state-proposed permits. See 33 U.S.C. § 1344(j). A 

state may not issue a proposed permit if the EPA objects. See

id. The EPA and Corps also continue to hold regulatory authority over waterways that flow between states and can be 

used for commercial activity, as Congress determined that 

those waters cannot be delegated to state control. See id. 

§ 1344(g)(1) (providing that federal agencies issue permits for 

navigable waters—defined as those waters used or susceptible to use in interstate commerce). 

Knowing that Michigan had received authority for 

dredge-and-fill permitting in 1984, Aquila directed its Section 

404 application to Michigan’s Department of Environmental 

Quality. The company’s application, and the Back Forty 
4 No. 19-1130

project more generally, concern the Menominee Tribe. The 

Tribe fears that some of its sacred sites could be damaged by 

changes to the River and increased activity on its banks. Tribal 

members often go to the River’s banks to visit the burial 

mounds of tribal ancestors and to perform and participate in 

ceremonies. Recently the Tribe reports working to reestablish 

wild rice at the mouth of the River to preserve and continue 

its traditional agricultural practices. The Tribe also became of 

the view that the recent growth of commercial activity on the 

Menominee River meant that the federal government, not 

Michigan, should be in charge of permitting. 

In August 2017 the Tribe expressed its concerns in letters 

to the EPA and Army Corps. The Tribe acknowledged that 

under the 1984 agreement between the EPA and Michigan, the 

state took over issuance of dredge-and-fill permits for many 

of the state’s waterways, subject to the EPA’s oversight preserved in the Clean Water Act. See 33 U.S.C. § 1344(j). But the 

Tribe emphasized that circumstances had changed since the 

1984 delegation. In the past 35 years, the Tribe explained, the 

Menominee River had experienced a growth of commercial 

activity, including riverboat tourism. This commercial activity, the Tribe continued, had a legal consequence: the segment 

of the Menominee River nearest to the proposed Back Forty 

mining site constituted a navigable waterway within the 

meaning of the Clean Water Act and therefore permitting for 

it could not remain delegated to the state. The Tribe asked the 

EPA and Corps to revisit whether they—as opposed to the 

state of Michigan—should exercise authority over Aquila’s 

Back Forty permit application. At the very least, the Tribe 

sought to consult with the EPA and Corps before Michigan 

made any decision about the Back Forty project.
No. 19-1130 5

Who decides the permitting question matters greatly to 

the Tribe, and for good reason. The Tribe sought to negotiate 

directly with the federal government because the United 

States has a long-recognized general trust responsibility toward Native Americans. See Seminole Nation v. United States, 

316 U.S. 286, 297 (1942) (explaining government’s “moral obligations of the highest responsibility and trust” toward Indian communities); see also United States v. Mitchell, 463 U.S. 

206, 225–26 (1983) (emphasizing the same point). 

The Tribe also saw specific procedural and legal benefits 

to the dredge-and-fill permit being decided by the federal 

agencies. If the permitting had been handled in the federal 

system, the Tribe would have enjoyed more participation 

rights. For example, the National Environmental Policy Act 

would have applied and likely required the EPA to complete 

an environmental assessment or impact statement about the 

Back Forty mine. See 42 U.S.C. § 4332(C); 40 C.F.R. §§ 1501.3, 

1501.4. Through that process, the Tribe would have an opportunity to request consultation with federal environmental officials. See 40 C.F.R. §§ 1501.2(d)(2), 1501.7(a)(1). 

The agencies responded by reinforcing—but not revisiting—the 1984 delegation. For its part, the Corps explained 

that it could not exercise jurisdiction over the permitting process for the Back Forty mine because permitting for the relevant section of the Menominee River had been assumed by 

Michigan in 1984. One month later, the Tribe received a sixsentence letter from the EPA not at all addressing its concerns 

but offering to speak with the Tribe by phone. Neither response addressed the Tribe’s request for the agencies to reconsider whether changed circumstances warranted the renewed exercise of federal authority over the relevant section 
6 No. 19-1130

of the Menominee River. Taking those letters as non-responsive, the Tribe turned to the courts and filed this lawsuit in the 

Eastern District of Wisconsin, naming the EPA, Army Corps, 

and the agencies’ secretaries as defendants. 

The federal lawsuit did not proceed very far. Aquila intervened in the action and joined the agencies in moving under 

Federal Rule of Civil Procedure 12(b)(1) and (6) to dismiss the 

Tribe’s complaint. The district court granted the motion on 

the basis that the challenged EPA and Army Corps letters 

were not “final agency actions” within the meaning of Section 

704 of the Administrative Procedure Act and therefore were 

not subject to judicial review. 

At the same time, the Michigan Department of Environmental Quality continued processing Aquila’s Section 404 

permit application. As required under its agreement with the 

EPA, Michigan submitted its proposed dredge-and-fill permit 

for Aquila’s mine to the EPA for federal review. The EPA objected to the permit and asked Michigan for additional information. A few months later, the state submitted a new draft 

permit. Upon reviewing the new draft and Michigan’s responses, the EPA withdrew its prior objections on the basis 

that its concerns had been alleviated. More specifically, the 

EPA allowed permitting to proceed if certain conditions were 

included in the final state permit. The state complied and 

granted Aquila the permit in June 2018. Shortly thereafter the 

Tribe challenged the permit in Michigan’s administrative system. That case is still pending. 

II

This appeal presents two questions—one narrow and one 

broad. The first is whether the agency action here is judicially 
No. 19-1130 7

reviewable. The broader question asks what legal avenue is 

available for the Tribe to seek review of the state delegation of 

the permitting process for the part of the Menominee River 

affected by the Back Forty project in light of changed circumstances.

A

We begin with the narrow question, which returns us to 

the Tribe’s complaint. The Tribe invoked the Administrative 

Procedure Act and alleged that the federal agencies’ decision 

not to exercise permitting authority over the dredge-and-fill 

permit for the Back Forty project was arbitrary and capricious 

and contrary to law. See 5 U.S.C. § 702. The district court concluded that it lacked authority to review that question because it was not a “final agency action” within the meaning of 

the APA.

The APA limits judicial review to “final agency action[s].” 

5 U.S.C. § 704. The Supreme Court has explained that to constitute a final action, the decision in question “must mark the 

consummation of the agency’s decisionmaking process—it 

must not be of a merely tentative or interlocutory nature” and 

it must “be one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (internal quotations 

omitted). 

The district court applied this framework and concluded 

that the EPA and Army Corps’s letters did not reflect any final 

agency decisions. We agree. The EPA and Corps’s responses 

did little but restate what the Tribe already knew—that Michigan, as a result of the 1984 delegation, had permitting authority over the section of the Menominee River near the Back 
8 No. 19-1130

Forty site. A letter “purely informational in nature” is not a 

final agency action because it “impose[s] no obligations and 

denie[s] no relief.” See Indep. Equip. Dealers Ass'n v. EPA, 372 

F.3d 420, 427 (D.C. Cir. 2004). Letters restating earlier interpretations likewise do not carry legal consequences for purposes of the “final agency action” requirement. See Clayton 

County v. Fed. Aviation Admin., 887 F.3d 1262, 1268 (11th Cir. 

2018). Because the Corps and EPA letters only reiterated the 

status quo, there was nothing for the district court (or now, 

us) to review.

The Tribe understandably will find this conclusion unsettling. Its letters to the EPA and the Army Corps were detailed 

and specific. The Tribe explained its basis for believing that 

the relevant part of the Menominee River should be under 

federal permitting authority. Neither the EPA nor the Corps 

accepted the Tribe’s invitation to revisit the 1984 delegation 

decision in light of the changed commercial circumstances 

highlighted in the Tribe’s letters. Indeed, neither agency responded in any way to that contention. This silence is particularly troubling since the agencies asserted for the first time 

at oral argument that the Tribe could have sought the requested relief by filing a petition for rulemaking under 5 

U.S.C. § 553(e). We are at a loss to understand why the EPA 

and the Army Corps did not inform the Tribe of this route 

upon receiving its letters. 

Although we see nothing standing in the way of the 

Tribe’s ability to file a § 553(e) petition at this point, it may be 

too late for any rulemaking to affect the dredge-and-fill permit at issue in this case. This further adds to our sense that the 

Tribe got the runaround here.
No. 19-1130 9

B

Even if we could somehow treat the agency responses as 

reflecting final decisions, our next step would be far from 

clear given parallel proceedings ongoing in Michigan. In addition to filing suit in federal court, the Tribe contested Aquila’s Section 404 permit before the Michigan Department of 

Environmental Quality. To our knowledge that proceeding

(which is called a contested case hearing) is pending before 

Michigan’s Administrative Hearing System. See MICH.

ADMIN. CODE r. 792.10301–.10306. And, if it does not prevail, 

the Tribe can seek review of the outcome of the contested case 

hearing in state court. See MICH. COMP. LAWS §§ 24.302–.305. 

Duplicative litigation in state and federal courts can cause 

coordination problems, interfere with effective government 

functioning, and lead to conflicting judgments. See, e.g., Colorado River Water Cons. Dist. v. United States, 424 U.S. 800, 817 

(1976). The Tribe sees those concerns as overstated because it 

perceives the scope of the state proceedings to be narrow. It 

says that there will be no overlap between the state and federal suits because the state administrative proceeding will not 

entail an adjudication of Michigan’s dredge-and-fill permitting authority under the Clean Water Act. For support, it notes 

that in denying a motion for a stay, the administrative law 

judge ruled on only state-law grounds. 

But the administrative law judge has not yet reached a decision on the merits, and after that the Tribe may turn to the 

state court for relief. As the Tribe acknowledged in its letter to 

the EPA and the Corps, the definition of “navigability” is ultimately decided by the judiciary. See 33 C.F.R. § 329.3. The 

ultimate decider need not be the federal judiciary, though. 

State courts are equally able to adjudicate questions of federal 
10 No. 19-1130

law. See Tafflin v. Levitt, 493 U.S. 455, 459 (1990) (noting the

“deeply rooted presumption” of concurrent jurisdiction over 

cases arising under federal law unless Congress decides otherwise). It is not the unique province of the federal courts to 

adjudicate administrative law challenges related to the Clean 

Water Act. See, e.g., In re Freshwater Wetlands Prot. Act Rules, 

798 A.2d 634, 643 (N.J. Super. Ct. App. Div. 2002) (evaluating 

whether state 404 permit met federal standards); see also Sierra Club Mackinac Chapter v. Dep’t of Envtl. Quality, 747 

N.W.2d 321, 331–32, 335 (Mich. App. 2008) (concluding that 

pollution-discharge permit violated the Clean Water Act). 

Nothing has been brought to our attention to suggest that the 

Tribe cannot receive full and fair review in a Michigan court.

III

The Tribe also challenges the district court’s denial of its 

motion for leave to amend its complaint. The Tribe sought to 

add two Administrative Procedure Act claims—one contending that the EPA’s withdrawal of its objections to Michigan’s 

issuance of the permit was arbitrary and capricious, and a second alleging that the agencies failed to consult with the Tribe 

about the Back Forty mine as Congress required under the 

National Historic Preservation Act. The district court denied 

the motion on the basis of futility, reasoning that neither claim 

would survive a motion to dismiss. We review a denial of a 

motion for leave to amend for abuse of discretion, while considering any embedded legal questions de novo. See Gandhi v. 

Sitara Capital Mgmt., LLC, 721 F.3d 865, 868–69 (7th Cir. 2013). 

A

To evaluate the Tribe’s claim that the EPA’s withdrawal of 

objections to Michigan’s proposed permit was arbitrary and 
No. 19-1130 11

capricious, we must revisit the regulatory scheme. Recall that 

where Section 404 permitting authority has been delegated to 

a state, the EPA retains an oversight role. See 33 U.S.C. 

§ 1344(j). The EPA reviews, and can object to, proposed permits. See id. If the agency lodges objections, the state cannot 

issue a permit without revising and resubmitting it for approval. See id.; see also 40 C.F.R. § 233.50. 

The EPA originally objected to Michigan’s proposed 

dredge-and-fill permit for Aquila’s Back Forty project on multiple grounds and sought more information. Michigan submitted a revised permit and agreed to add additional conditions, including, for example, a requirement that Aquila monitor the effect of dust levels on nearby wetlands. Upon its second review, EPA concluded that its concerns were resolved 

and allowed the permit to go forward.

In the district court, the Tribe sought leave to amend its 

complaint to challenge the EPA’s withdrawal of its objections 

to the permit that Michigan planned to issue to Aquila. The 

Tribe asserts that the EPA provided little to no explanation, 

rendering its decision arbitrary and unsupported. The district 

court, however, concluded that the proposed claim would fail 

(and therefore be futile) because the EPA’s decision was exempt from judicial review as a matter of law. Specifically, the 

district court reasoned that the EPA’s decision to withdraw its 

objections was “committed to agency discretion by law.” 5 

U.S.C. § 701(a)(2). 

The Supreme Court has explained that § 701’s limitation 

on judicial review is “a very narrow exception” applicable 

only when there is “no law to apply.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971). Discretionary 

enforcement decisions reflect one category of agency 
12 No. 19-1130

decisions that the Supreme Court has identified as unsuitable 

for judicial review. A clear illustration came in Heckler v. 

Cheney, 470 U.S. 821 (1985). There the Court explained that 

courts generally do not review agency decisions about 

whether to bring an enforcement action because such a decision “often involves a complicated balancing of a number of 

factors which are peculiarly within its expertise.” Id. at 831. 

Such factors, the Court underscored, include resource constraints and policy priorities. See id.

When deciding whether a decision is committed to agency 

discretion, we first review the applicable statutes and regulations. See Head Start Family Educ. Program, Inc. v. Coop. Educ. 

Serv. Agency 11, 46 F.3d 629, 632 (7th Cir. 1995). We examine 

those measures to see if they contain “judicially manageable 

standards . . . for judging how and when an agency should 

exercise its discretion.” Heckler, 470 U.S. at 830; see also Miami 

Nation of Indians of Ind. v. Dept. of Interior, 255 F.3d 342, 348–49 

(7th Cir. 2001) (examining regulations governing the tribal 

recognition process to determine if they contain criteria that 

“courts are capable of applying”). 

The Tribe does not point to any regulations governing the 

withdrawal of objections. We searched too and came up 

empty, finding no statute, regulation, or guideline that instructs the EPA how to decide whether a state has tendered a 

satisfactory resolution to a previous permitting objection. The 

Tribe suggests that we fill the gap by looking to the regulations governing the decision to object in the first place. It notes 

that those regulations require that any objection “be based on 

the [EPA’s] determination” that the proposed permit is “outside [the] requirements of the [Clean Water] Act, these regulations, or the 404(b)(1) Guidelines.” 40 C.F.R. § 233.50(e). On 
No. 19-1130 13

the surface, the Tribe’s argument makes sound sense: the 

same reasons that the EPA might object could, the reasoning 

runs, be used to decide when a permit can go forward. 

We read the regulatory language another way, though. Remember that the language about objections is permissive, 

making plain that “[a]ny such objection” the EPA chooses to 

lodge must be based on certain prescribed factors. Id. The initial choice—the decision whether to object—remains discretionary. That discretion remains no matter how much a particular permitting proposal may, as an objective matter, deviate from the prescribed regulatory standards. See id.; see also 

Heckler, 470 U.S. at 835–37 (explaining that agency action was 

unreviewable where nothing in the regulatory scheme compelled enforcement in the event of violations); American Paper 

Inst. v. EPA, 890 F.2d 869, 878 (7th Cir. 1989) (concluding that 

the EPA’s decision to object to a state-issued permit in a similarly structured pollutant-discharge program under the Clean 

Water Act was committed to agency discretion).

The proper conclusion, then, is that, in the absence of any 

regulation addressing the basis for the decision to withdraw 

an objection, the choice is as committed to the agency’s discretion as the decision to object in the first instance. If the EPA 

finds a shortcoming in the state’s response to a particular objection, the agency must again make a judgment call about 

whether to maintain the objection. The decision may depend 

on many factors, including the EPA’s judgment about not 

only the materiality of the concern that gave rise to the initial 

objection and the sufficiency of the state’s responsive 

measures, but also whether the agency’s limited time and resources are best used to persist with an objection pertinent to 

one project when others likewise call for federal attention. 
14 No. 19-1130

The Tribe would be on much stronger footing if the Clean 

Water Act’s regulatory scheme required the EPA to object if 

certain conditions were not met. See, e.g., Amador County v. 

Salazar, 640 F.3d 373, 376–77 (D.C. Cir. 2011) (rejecting the argument that the Secretary of the Interior’s acceptance of a 

state-tribal compact was committed to agency discretion because the law at issue obligated the Secretary to disapprove of 

compacts that violated the regulatory scheme). But the difference in the Section 404 context—that the agency is not compelled to address all defects in every proposed dredge-andfill permit—is that the withdrawal decision is committed to 

the EPA’s discretion. And it is that reality that requires us to 

reject the Tribe’s proposed claim.

A final and broader point is worth observing. The Clean 

Water Act’s regulations allow the EPA to decline to review 

whole categories of state-issued dredge-and-fill permits 

through a blanket waiver program. See 40 C.F.R. § 233.51; see 

also Save the Bay, Inc. v. EPA, 556 F.2d 1282, 1295 (5th Cir. 1977) 

(noting similar feature of the Clean Water Act pollutant discharge program as support for concluding that EPA decision 

not to veto a permit was committed to agency discretion and 

therefore not subject to judicial review). It makes little sense 

to apply a strict set of criteria for withdrawing objections 

when the regulatory scheme allows the EPA to assign wholesale its review authority and put permitting completely in the 

hands of the state officials. That expansive delegation authority reinforces our conclusion that the Clean Water Act commits dredge-and-fill permit objections and subsequent withdrawals to the EPA’s discretion. 
No. 19-1130 15

B

The Tribe also sought leave to add another APA claim—

that the EPA had failed to recognize the Tribe’s consultation 

rights conferred by the National Historical Preservation Act. 

See 5 U.S.C. § 706(1) (authorizing courts to “compel agency 

action unlawfully withheld or unreasonably delayed”). The 

Preservation Act creates a consultation requirement for certain federal “undertaking[s].” 54 U.S.C. § 306108. The federal 

agency overseeing the project must, before approving funding or licensure, “take into account the effect of the undertaking on any historic property.” Id. The Preservation Act emphasizes the importance of protecting the interests of recognized Indian tribes and requires consultation when an undertaking would alter historic property of religious or cultural 

significance to a tribe. See id. §§ 302701, 306102(b)(5)(B).

The Tribe reads the Preservation Act as obligating the EPA 

and Army Corps to consult with it about the Back Forty mine 

project. But that position is mistaken. The Preservation Act 

applies only to undertakings that are “[f]ederal or federally 

assisted.” Id. § 306108. The Tribe alleged neither federal funding nor federal assistance. We have held that the procedural 

requirements of the statute do not apply to projects for which 

no federal support has been sought, “no federal dollars have 

been obligated, and no federal license is required.” Old Town 

Neighborhood Ass'n Inc. v. Kauffman, 333 F.3d 732, 735 (7th Cir. 

2003). Because the Back Forty mine is privately funded and 

state-licensed, the Preservation Act’s consultation requirement is not triggered here. 
16 No. 19-1130

* * *

The Menominee Indian Tribe of Wisconsin’s sincere efforts to protect its cultural heritage ran into a legal labyrinth 

and regulatory misdirection. Had the federal agencies provided a meaningful response to the Tribe’s concerns, perhaps 

this suit could have been avoided. But in light of the regulatory scheme that we cannot change, the resolution of this case 

is clear. We cannot review the agency action here. In these circumstances, the Tribe is left to pursue its challenge in the 

Michigan administrative system and state courts. And we are 

left to AFFIRM the judgment of the district court.
No. 19-1130 17 

HAMILTON, Circuit Judge, concurring. I agree that the EPA 

and Army Corps letters were not final agency actions, 5 U.S.C. 

§ 704, and that the EPA’s decision to withdraw its objections 

to the Michigan permit was committed to agency discretion 

by law, id. § 701(a)(2). As a result, the federal courts lack authority to intervene in this dispute at this juncture. I write separately (a) to highlight the problem with the statutory standard that allows the federal government to delegate Clean Water Act permitting to the State of Michigan and (b) to emphasize that the Tribe can still pursue its challenges to the Back 

Forty mine under Section 404 of the Act, 33 U.S.C. § 1344, 

through the EPA and the Michigan state courts. 

A delegation of Clean Water Act permitting authority to a 

state under 33 U.S.C. § 1344(g) must, as a practical matter, reflect a fairly long-term commitment. The practical problem 

with the statutory standard is that the state’s permissible jurisdiction over waters depends on facts that can change over 

time. The delegation may not include major waterways, 

though. The statute bars delegation for “waters which are 

presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport 

interstate or foreign commerce shoreward to their ordinary 

high water mark” and adjacent wetlands. 33 U.S.C. 

§ 1344(g)(1). Under this standard, as uses of particular 

stretches of waterways may change, so may the legality of a 

federal delegation of authority to a state. As applied to the 

Menominee River near the proposed Back Forty mine, there 

is a substantial issue whether the original delegation in 1984 

remains valid as a matter of federal law. 
18 No. 19-1130

That issue is not teed up for federal courts to decide in this 

case, as Judge Scudder has explained. That does not mean the 

issue is closed, however. 

First, the Tribe may petition the EPA to reassume federal 

permitting authority over this stretch of the Menominee River 

as an amendment to a rule. See 5 U.S.C. § 553(e). The EPA’s 

1984 approval of Michigan’s Section 404 permit program bore 

the hallmarks of a legislative rule. See 49 Fed. Reg. 38,947 (Oct. 

2, 1984), codified at 40 C.F.R. § 233.70. The approval was written as a “regulation” that was promulgated after public notice 

and comment. See id. at 38,947; see also 40 C.F.R. § 233.15(e) 

(providing for public participation in state program approvals). The EPA would have a duty to respond to any petition 

for revisions to the scope of the Michigan delegation. See Nat’l 

Parks Conservation Ass’n v. U.S. Dep’t of Interior, 794 F. Supp. 

2d 39, 44 (D.D.C. 2011) (“an agency ‘is required to at least definitively respond to . . . [a] petition—that is, to either deny or 

grant the petition” (alteration in original)). 

If the Tribe submits such a petition, the EPA will have to 

answer within a reasonable time. See 5 U.S.C. § 555(b) (requiring an agency to “conclude a matter presented to it” within “a 

reasonable time”); id. § 706(1) (a “reviewing court shall . . . 

compel agency action unlawfully withheld or unreasonably 

delayed”); see also Envtl. Integrity Project v. EPA, 160 F. Supp. 

3d 50, 54 (D.D.C. 2015) (“the APA is the source of an agency’s 

duty to respond to a petition for rulemaking . . . within a reasonable time . . . .”); Families for Freedom v. Napolitano, 628 F. 

Supp. 2d 535, 540 (S.D.N.Y. 2009) (holding that delay in deciding a rulemaking petition was unreasonable and ordering 

response within thirty days). The D.C. Circuit has set forth a 

general framework for deciding claims of agency delay that 
No. 19-1130 19

courts can apply to unanswered rulemaking petitions. See Telecommunications Research & Action Ctr. v. FCC, 750 F.2d 70, 80 

(D.C. Cir. 1984) (identifying six factors to evaluate); Families 

for Freedom, 628 F. Supp. 2d at 540 (applying TRAC factors in 

this context). 

Absent periodic review by the EPA, the scope of a Section 

404 delegation to a state could quickly fall behind the times 

and out of legal compliance. This case illustrates that risk. As 

codified, the Michigan approval incorporated a Memorandum of Agreement signed in the spring of 1984 that retained 

just a small portion of the Menominee River under federal jurisdiction. See 40 C.F.R. § 233.70(c)(2); Joint App. at 163, 166, 

168. But rivers change, and so does the commerce they carry. 

The nearly forty-year-old memorandum might no longer reflect actual conditions. The EPA may need to decide, on its 

own initiative or in response a petition by the Tribe, whether 

the 1984 delegation is still viable as applied to the Menominee 

River near the Back Forty mine. 

A reassessment by the EPA to ensure that the scope of the 

Michigan delegation still complies with the Clean Water Act 

appears long overdue. I don’t mean to criticize § 1344(g)(1); 

the statute reflects policy compromises that are of course up 

to Congress. But since Congress chose to make the scope of 

permissible delegation depend on circumstances that can 

change decisively over time, agencies and courts must do 

their best to comply. The Act also provides that the EPA 

“shall” withdraw approval of a state program not administered “in accordance with this section,” including the jurisdictional provision. 33 U.S.C. § 1344(i). I express no view on 

whether or how such a withdrawal would affect current controversies like this case. 
20 No. 19-1130

Second, as Judge Scudder’s opinion for the panel observes, 

the Tribe may argue in state court that Michigan lacks permitting jurisdiction over this portion of the Menominee River under § 1344(g)(1). If the Tribe raises that issue of federal law, a 

state court will need to decide it. Michigan courts have heard 

Clean Water Act challenges to state actions. See Sierra Club 

Mackinac Chapter v. Dep’t of Envtl. Quality, 747 N.W.2d 321, 

331–32, 335 (Mich. App. 2008) (ruling that Michigan courts 

had jurisdiction over claim that general permit violated the 

Clean Water Act and finding such a violation). If the Tribe 

were to prevail in state court on its jurisdictional argument, 

such a decision would deprive Michigan environmental officials of “adequate authority to carry out” the state program 

on this stretch of river. 33 U.S.C. § 1344(g)(1). That decision 

would presumably require the EPA to reassume federal authority, exercising its power under § 1344(i) if necessary. 

The Tribe objects that the Michigan administrative law 

judge who is hearing the “contested case” has refused to address the questions of federal law, including a challenge to the 

scope of the federal delegation of permitting authority. See 

Order on Motion to Stay, Petitions of Thomas Boerner et al., No. 

18-013058 at 2–3 (Mich. Admin. Hearing Sys. Jan. 29, 2019) (attached to Appellant’s Br.). I express no view on the administrative law judge’s refusal to consider the scope of the delegation as a matter of Michigan administrative law, but limits on 

the issues that administrative law judges may consider are not 

unusual. Whether the administrative law judge is right or 

wrong, however, should not affect the power of Michigan 

courts of general jurisdiction to address the issue. 

If the Tribe seeks judicial review in a Michigan circuit 

court, see Mich. Comp. Laws §§ 24.302–.305, that court will be 
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bound to examine a jurisdictional challenge based on federal 

law. “State courts, like federal courts, have a constitutional 

obligation to safeguard personal liberties and to uphold federal law.” Stone v. Powell, 428 U.S. 465, 494 n.35 (1976); Martin 

v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 340–44 (1816) (Supremacy Clause requires both federal and state judges to decide cases “according to the constitution, laws and treaties of 

the United States”); see also Gulf Offshore Co. v. Mobil Oil Corp., 

453 U.S. 473, 477–78 (1981) (recognizing state courts’ duty to 

apply binding federal law). If the state courts reject the Tribe’s 

arguments under federal law, review would ultimately lie 

with the Supreme Court under 28 U.S.C. § 1257. 

For now, however, the EPA’s 1984 delegation of authority 

over this stretch of the Menominee River to Michigan remains 

in effect. For that reason, we must affirm. The Tribe must ask 

the EPA, the Michigan ALJ, and Michigan courts to examine 

alleged infirmities in the Section 404 permit for the mine.