New Mexico Navajo Ranchers Ass'n v. Interstate Commerce Commission

HARRY T. EDWARDS, Circuit Judge,

concurring:

I concur in the judgment but write separately to emphasize that I do not find the resolution of this case to be free from doubt.

First, because Navajo religious practices cannot be comprehended in conventional religious terms, because Navajo religious sites are not easily identifiable, and because of Star Lake’s obvious interest in having its proposed line constructed as quickly as possible, I am troubled by the Commission’s decision not to engage in direct consultations with Navajo religious leaders before approving the construction of the Star Lake line. One might have expected the Commission to be more solicitous of the petitioners’ claim that the handling of consultations with Navajo religious leaders should not be delegated to Star Lake and other outside consultants.

Second, the majority places too much weight on the Tribe’s alleged willingness to suffer societal and cultural detriments by building its own rail line. Surely, the Commission was required to make an independent evaluation of the adverse effects of the Star Lake line. To the extent that these adverse effects would be similar to those caused by the Navajos’ line, this is the price the Navajos would be willing to pay voluntarily to achieve Congress’ goal of tribal self-sufficiency. The majority’s analysis thus brings to mind another “rhetorical gambit”: Don’t mix apples and oranges. Furthermore, the majority’s apparent test in this regard — that the Commission should approve any proposed rail line through Indian lands unless the line will “seriously impair the fabric of tribal life”— is devoid of statutory support. In addition, the majority’s statement fails to adhere to the test enunciated in Navajo I: “The ICC is bound to consider the extent to which the proposed construction is consistent with the public interest in preserving the status of the Navajo tribe as a ‘quasi-sovereign nation’ and in preserving the tribe’s ability ‘to maintain itself as a culturally and politically distinct entity.’ ” 702 F.2d at 233 (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 71, 72, 98 S.Ct. 1670, 1683, 1684, 56 L.Ed.2d 106 (1978)).

Third, the majority pushes the judicial deference envelope to the outer limit when *46it summarily approves the Commission’s acceptance of Star Lake’s financial projections. These projections are very sketchy to say the least; the Commission should have required Star Lake to make more than a half-hearted effort in formulating financial estimates. The deficiency in the record on this point, however, is not enough to overturn the Commission’s judgment.

Finally, in my view, the majority opinion goes far afield when it “parenthetically” reaches out to suggest that Navajo I may not survive Lyng v. Northwest Indian Cemetery Protective Association. As the majority correctly notes, Lyng presented an issue that is not before us; therefore, we have no business speculating on questions that may appear “another day.”

With these concerns noted, I nonetheless conclude that, under prevailing law and based on the record on the whole, the Commission adequately explained its decision in this case. I thus join the majority in affirming the Commission’s conferral of authority on Star Lake.