Hydro Resources, Inc. v. United States Environmental Protection Agency

*1168EBEL, Circuit Judge, joined by BRISCOE, Chief Judge,

HENRY, LUCERO, and MURPHY, Circuit Judges, dissenting.

In Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520, 118 S.Ct. 948, 140 L.Ed.2d 30 (1998), the Supreme Court rejected the Ninth Circuit’s multi-factor test for determining whether a given area of land constitutes a dependent Indian community. Instead, the Court held that a two-part test should be applied to determine whether the “land in question” is a dependent Indian community: first, by considering whether the land was “set aside by the Federal Government for the use…