# Record and brief — Crow Tribe of Indians v. Environmental Protection Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_0159%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1981 - **Citation:** 454 U.S. 1081 ## Text uonned Office Suoreme Court 81-312 FILED No. AUG 17 198) — In THE 61 Supreme Court of the United States OCTOBER TERM, 1981 Crow TRIBE OF INDIANS, MONTANA Marcus L. NANCE, NANCE CATTLE Co., PEABODY COAL Co., THERMAL ENERGY, INC., WESTMORELAND RESOURCES, INC., . Petitioners EViRONMENTAL PROTECTION AGENCY, Respondent PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT URBAN BEAR DON’T WALK WILLIAM A. WHITE 301 N. 27th Street Counsel of Record Billings, Montana 59101 GEORGE J. MILLER (406) 259-3080 DECHERT PRICE & RHOADS Attorney for Petitioner 888 Seventeenth Street, N.W. Crow Tribe of Indians, Washington, D.C. 20006 Montana (202) 872-8600 TERRY O’CONNOR Attorneys for Petitioner 12015 E. 46th Avenue Westmoreland Resources, Ine. Denver, Colorado 80239 WILLIAM E. MuURANE (303) 371-7990 PAUL D. PHILLIPS Attorney for Petitioner HOLLAND & HART Peabody Coal Co. P.O. Box 8479 Denver, Colorado 80201 (303) 575-8000 Attorneys for Petitioners Marcus L. Nance, Nance Cattle Co., and Thermal Energy, Inc. August 17, 1981 WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001 QUESTIONS PRESENTED 1. Was it not arbitrary and capricious for the En- vironmental Protection Agency to ignore Indian tribe and coal mining company objections to the designation of a Class I area under the Clean Air Act on the theory that the designation would not affect coal mining under its then-current regulations, where EPA had reason to know when it acted that coal mining would be adversely affected by the designation under the 1977 Amendments to the Act which had already passed both houses of Congress and were awaiting Presidential signature? 2. Where the principal impact of the Class I designa- tion on petitioners’ mining operations will occur in the future, do not the preclusion of judicial review provi- sions of the 1977 Clean Air Act Amendments require the Court of Appeals to remand the proceedings to the Envirormental Protection Agency for consideration of the effect which the 1977 Amendments would have on surface coal mining near the Northern Cheyenne Re- servation? 3. Did the Environmental Protection Agency breach the federal government’s fiduciary obligations to the Crow Tribe of Indians in approving the redesignation of a clean air area adjacent to Crow Tribe land without considering the objections of the Crows that the re- designation would adversely affect their ability to mine coal on their land? (i) ii PARTIES TO THE PROCEEDING IN THE COURT WHOSE JUDGMENT IS SOUGHT TO BE REVIEWED Amax Coal Co. Crow Tribe of Indians, Montana Environmental Protection Agency ITT Resources *Montana Power Co. Marcus L. Nance Nance Cattle Co. Northern Cheyenne Tribe *Pacific Power & Light Co. Peabody Coal Co. Portland General Electric Co. *Puget Sound Power & Light Co. Thermal Energy, Inc. » Washington Water Power Co. Westmoreland Resources, Inc. * Parties dismissed after settlement agreement. + Peabody Holding Co., Washington Energy Co., and Westmore- land Coal Co. are the parent companies of petitioners Peabody Coal Co., Thermal Energy, Inc., and Westmoreland Resources, Inc., respectively. Penn-Virginia Corp. is an affiliate of Westmoreland Coal Co. and Westmoreland Resources, Inc. TABLE OF CONTENTS Page D . 1 9 8 2 Statutes and Regulations Involved 2 , ereeatsneethcniniaieingneleiin 3 Reasons for Granting the Writ 6 8c 17 % — ò[—— — la (iii) iv TABLE OF AUTHORITIES CITED Cases Page Adamo Wrecking Co. v. United States, 434 U.S. // 11 Alabama Power Co. v. Costle, 636 F.2d 323, 369- . ee ae 7,8 Brandt v. Hickel, 427 F.2d 53, 57 (9th Cir. 1970) .. 16 Cramer v. United States, 261 U.S. 219 (1923)...... 14 Kawasaki Motors Corp. v. Train, No. 74-1697 (9th Cir. August 9, 1974), cert. denied, 420 U.S. 926 n 12 Manchester Band of Pomo Indians, Inc. v. United States, 363 F. Supp. 1238 (N. D. Cal. 1973) 14 Menominee Tribe v. United States, 101 Ct. Cl. 10 ( 14 Moser v. United States, 341 U.S. 41 (1951) ............ 16 Oljato Chapter of Navajo Tribe v. Train, 515 F.2d . 11. 12 Pyramid Lake Paiute Tribe of Indians v. Morton, 354 F. Supp. 252 (D. D.C. 1973) 14 Seminole Nation v. United States, 316 U.S. 286, 296 - | v 13. 14 Union Electric Co. v. Environmental Pro. Agcy., 515 F.2d 206 (8th Cir. 1975), aff'd, 427 U.S. 246 EEE Re ST AE ETS, SRT na Te Pe ED 12 United States v. Creek Nation, 295 U.S. 103 aS ARTE AS PRES ne eon Nee aa oe TOE 14 United States v. Georgia-Pacific Company, 421 F.2d 92, 100 (9th Cir. 1970) 16 United States v. Lazy FC Ranch, 481 F.2d 985, 988 e SAREE tea 16 Statutes & Regulations Administrative Procedure Act: J SEER — 2-3, 10 Clean Air Act: 42 U.S.C. § 7401-7642 (Supp. III 1979) 2,8, 10, 12 42 U.S.C. § 7607 (b) (Supp. III 1979) 10-11 V TABLE OF AUTHORITIES CITED—Continued 28 U.S.C. §1254(1) (1976) .............. — 2 t 2,8 OR ee 2,3 ee? fk . 1 42 Fed. Reg. 40,695, 40,697 (1977) 4, 5, 15 45 Fed. Reg. 52,676, 52,693 (1980 8 Administrative Rules of Montana § 16.8.822 — eines 8 [1980] Montana Administrative Register 2402, 2430 I 8-9 Miscellaneous Comments of Westmoreland Resources, Inc. to the Environmental Protection Agency (May 25, —— itatinbintidinieeateia daniel aati 4,9 Gelhaus, Northern Cheyenne Reservation Diffusion Modelling Analysis (1977) 9 Letter from James A. Joseph, Undersecretary of the U.S. Department of the Interior, to Douglas Costle, EPA Administrator (June 23, 1977)...... 5, 15 Terziev, PSD: New Regulations and Old Problems, 5 Harv. ENvr'L. L. REv. 130 (1981777777 3 Treaty with the Crows, 15 Stat. 649 (1868) 14 IN THE Supreme Court of the United States OCTOBER TERM, 1981 No. Crow TRIBE OF INDIANS, MONTANA Marcus L. NANCE, NANCE CATTLE Co., PEABODY COAL Co., THERMAL ENERGY, INC., WESTMORELAND RESOURCES, INC., 2 Petitioners EVIRONMENTAL PROTECTION AGENCY, Respondent PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Petitioners Crow Tribe of Indians, Montana, Marcus L. Nance, Nance Cattle Co., Peabody Coal Co., Thermal Energy, Inc. and Westmoreland Resources, Inc. pray that a writ of certiorari issue to review the decree of the United States Court of Appeals for the Ninth Circuit in these consolidated cases. OPINIONS BELOW The opinion of the Court of Appeals is reported at 645 F.2d 701 (9th Cir. 1981) and appears at pp. la-35a of the Appendix. The decision of the Environmental Pro- tection Agency Administrator was published at 42 Fed. Reg. 40,695 (1977), was codified at 40 C.F.R. § 52.1382 (1980), and appears at pp. 36a to 45a of the Appendix. 2 JURISDICTION The judgment of the Court of Appeals was entered on May 18, 1981 and appears at p. 3la of the Appendix. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1) (1976). STATUTES AND REGULATIONS INVOLVED This case raises questions concerning the Clean Air Act of 1970, Pub. L. No. 91-604, 84 Stat. 1676 (1970), both before and after the enactment of the Clean Air Act Amendments of 1977, Pub. L. No. 95-95, 91 Stat. 685 (1977), and concerning EPA’s interpretation of the Act. The Clean Air Act, as amended, is now codified at 42 U.S.C. §§ 7401-7642 (Supp. III 1979). The text of the Act, in pertinent part, is set out in the Appendix at pp. 46a-66a. EPA’s regulatory interpretations of the Act are set forth in the Code of Federal Regulations, 40 C. F. R. § 52.21 (1977); and 40 C.F.R. §51.24 (1980), as amended by 45 Fed. Reg. 52,729-35 (1980). The text of these regulations, in pertinent part, is set out in the Appendix at pp. 82a-106a. Section 10(e) of the Administrative Procedure Act, 5 U.S.C. § 706 (1976) provides, in pertinent part: To the extent necessary to decision and when pre- sented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applica- bility of the terms of an agency action. The review- ing court shall— * * * * (2) hold unlawful and set aside agency ac- tion, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; 3 (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statu- tory right; [or] (D) without observance of procedure re- quired by law. STATEMENT OF THE CASE In 1976, the Northern Cheyenne Tribe of Indians proposed to tighten the air quality classification of its reservation from Class II to Class I under the Environ- mental Protection Agency’s (EPA’s) 1974 Prevention of Significant Deterioration (PSD) regulations.“ The Chairman of the Crow Tribe and the surface mining 140 C.F.R. § 51.24 (1977). The PSD Programs involved in this litigation were designed to prevent significant deterioration of air quality in areas already meeting the National Ambient Air Quality Standards (NAAQS). See generally Terziev, PSD: New Regula- tions and Old Problems, 5 Harv. ENvt'L. L. REV. 130 (1981). EPA’s 1974 PSD Program was court-mandated. The Clean Air Act was then amended to incorporate a statutory PSD program in 1977. Major new and modified sources, as now defined in the Clean Air Act, located in areas which comply with the NAAQS (attainment areas) must show that they will not contribute to a violation of either a NAAQS or exceed the increment by which levels of par- ticulate matter or sulfur dioxide (SO,) may increase over pre- existing or “baseline” levels. EPA’s PSD regulations employ a classification system under which all attainment areas originaily were designated Class II. Class II designation permits moderate increases in particulate matter and SO, concentration above the pre-existing levels. States, federal land managers and Indian gov- erning bodies were empowered to redesignate their territories as either Class I or Class III subject to the approval of EPA. A Class I designation would permit substantially smaller increases in air pollution than would a Class II designation. Consequently, few if any new industrial facilities could be constructed in or near a Class I area. A Class III designation would permit increases up to the NAAQS. 4 petitioners objected to EPA’s approval of this reclassifi- cation because of a concern that the proposed stringent Class I requirements would unduly limit their ability to mine coal on nearby coal land owned or leased by them. The Northern Cheyenne Tribe and EPA dismissed petitioners’ objections, taking the position that EPA’s then-current PSD regulations, promulgated under the existing Clean Air Act, would not affect mining opera- tions. Before EPA finally approved the Northern Chey- enne redesignation in 1977, however, Congress had passed and sent to the President amendments to the Clean Air Act which EPA has interpreted in its 1980 PSD regula- tions to expand the PSD program to constrain seriously coal mining operations like those of petitioners. Petitioners had argued to EPA that the reclassifica- tion would affect their operations under these pending statutory amendments, and had requested deferral of EPA action on the redesignation. Comments of West- moreland Resources, Inc. to EPA (May 25, 1977), App. at 112a. Nonetheless, even when presidential signature on the 1977 Amendments was imminent, EPA continued to insist that “strip mines . . . would not be directly affected by a redesignation.” 42 Fed. Reg. 40,695, 40,697 (1977). The redesignation took effect on a Friday after- noon, two days before the 1977 Amendments were signed by the President. Thus, petitioners were and are faced with having a Class I area neighboring their coal lands and with EPA’s interpretation of the 1977 Amendments. Contrary to EPA’s assurances in 1977, the Class I de- signation does, under the Agency’s current interpretation of the Amendments, have serious adverse consequences on petitioners’ operations. In the course of the redesignation approval process, EPA not only ignored the objections of Indian and non- Indian surface mining petitioners that they would be affected; it also relied on technicalities to disclaim any 5 fiduciary obligation to the affected Crow Tribe to look at the actual impacts on them. EPA found that a protest of the Crow Tribal Chairman and of the attorney for the Crow Tribe was not a protest of the Tribe itself requiring review of tribal objections on the merits. 42 Fed. Reg. 40,697 (1977). Moreover, EPA ignored the request of Undersecretary Joseph of the Department of the Interior that EPA review the redesignation on the merits to insure that the responsibility of the United States to the conflicting interests of the Crow and North- ern Cheyenne Tribes would be met. Letter from James A. Joseph, Undersecretary of the U.S. Department of the Interior, to Douglas Costle, EPA Administrater (June 23, 1977), App. at 113a. The Court of Appeals found that [a]s a result of the letters from the Undersecretary of the Interior, and the Crow Tribe, and the failure of EPA to respond to those letters before approving the redesignation, the responsi- bility to exercise those fiduciary obligations is fairly placed upon the EPA.” 645 F.2d at 711. The court also found that EPA, in ignoring the Tribe’s objections to the proposed redesignation, had not breached the govern- ment’s fiduciary obligation to the Crow Tribe only be- cause the Agency insisted that the Crows would not be adversely affected by the Class I designation. The court below sustained EPA’s approval of the redesignation over surface mining petitioners’ and Tribal objections even though it found that [t] he conclusion is . . . com- pelled that on the date the EPA finally approved the redesignation, it knew that the 1977 Clean Air Amend- ments would be passe“ and signed into law.” App. at lla; 645 F.2d at 707, 708 (9th Cir. 1981) (emphasis added). While petitioners are now seriously constrained in their mining activities by the Class I designation, even more serious harm may be suffered by them in the future. Because the judicial review provisions of the Clean Air Act may preclude a later review of the Class I designation, important questions of the timing of the review of the redesignation under the Clean Air Act Amendments and the discharge of the government’s fiduciary obligations to the Crow Tribe are presented by these rulings. They require resolution by this Court if petitioners are not to be deprived of the right to mine coal on their lands without the protections of a rule- making proceeding in which the actual impacts of the redesignation on energy development are fully consid- ered by EPA. REASONS FOR GRANTING THE WRIT EPA’s approval of the Class I redesignation on the ground that it “would not” affect petitioners under exist- ing law, when EPA had good reason to believe that peti- tioners would be affected under the already enacted 1977 Amendments to the Clean Air Act, contrasted with EPA’s later interpretation of the 1977 Amendments which constrain wining substantially, raises novel and fundamental questions relating to the conduct of admin- istrative agencies. Novel and fundamental questions are also raised by the Court of Appeals’ ruling against pe- titioners based on EPA’s assurances that its PSD regu- lations would not affect mining, when the judicial review provisions of the Act may preclude later judicial review of the Class I designation under EPA’s current regula- tory interpretation, which severely constrains mining. These questions have not been, but should be, decided by this Court. If this Court does not issue a Writ of Cer- tiorari now, the Indian tribe and surface mining peti- tioners’ rights to have EPA consider their objections to the actual impacts of a Class I redesignation may be lost forever. EPA could not later change the designation even if it so desired, unless the Northern Cheyenne them- 7 selves initiated another redesignation proceeding. More- over, the Crow Tribe’s property rights will have been affected without proper discharge of the fiduciary obliga- tions of the United States. I. IT IS ARBITRARY AND CAPRICIOUS FOR AN ADMINISTRATIVE AGENCY TO AVOID DEALING WITH PETITIONERS’ OBJECTIONS TO A PRO- POSED ACTION ON THE THEORY THAT THE ACTION WOULD NOT AFFECT PETITIONERS, WHERE THE AGENCY KNEW WHEN IT AP- PROVED THE PROPOSAL THAT PETITIONERS MIGHT BE AFFECTED UNDER A STATUTORY AMENDMENT WHICH HAD ALREADY PASSED BOTH HOUSES OF CONGRESS AND WAS AWAIT- ING PRESIDENTIAL SIGNATURE. A. Petitioners Face Significant Hardship Because a Class I Designation Imposes Immediate Adverse Consequences for Surface Coal Mining Under the 1977 Amendments to the Clean Air Act. Petitioners’ problem with EPA's actions is straight- forward. The Agency approved the creation of a Class I area in the midst of their coal reserves and coal mining operations on the theory that this action would not affect petitioners, when EPA has interpreted the 1977 Amend- ments to constrain seriously petitioners’ mining activities. The Court of Appeals’ position that petitioners may not be injured because it is not now clear whether peti- tioners’ coal mines will be subjected to pre-construction review, Alabama Power Co. v. Costle, 636 F.2d 323, 369- 370 (D.C. Cir. 1979), is no answer to petitioners’ claim that they will be affected by the Class I designation under EPA’s interpretation of the 1977 Amendments. The presence of this Class I area is having, and will continue to have, serious effects on coal mining operations whether or not pre-construction PSD review is required. 8 Whether or not petitioners’ mines are subject to pre- construction review, they will remain subject to the most stringent, Class I, PSD requirements if the North- ern Cheyenne redesignation remains in effect. Petitioners are affected, first, because EPA interprets the Act to mean that the PSD increment? can be consumed by fugitive dust. 45 Fed. Reg. 52,693 (1980). Class I PSD increments are ceilings on ambient air quality. If the increment is consumed, state permitting of sur- face mine operations must become more restrictive. For example, once the increment over the Northern Cheyenne Reservation is consumed, under EPA’s present regulations Montana must revise its state implementation plan to protect the increment and correct any violation. 40 C.F.R. § 51.24 (a), (e) (1980); App. at 82a, 96a. EPA ean force the state to adopt the “severe correctives of a rollback in operation or the application of retrofit air pollution control technology” to cure such a violation. Alabama Power, 636 F.2d at 363. These effects occur whether or not coal mines are required to obtain pre- construction PSD permits. Further, whether or not coal mines are required to obtain pre-construction PSD permits, petitioners will be encumbered by the visibility protection requirements of the Montana state implementation plan. Montana’s strict visibility rules apply automatically to this particular Class I area, thereby restricting the range of possible uses for nearby lands.“ 2 In a Class I area, the maximum allowable increase of particulate matter over pre-existing levels is 5 micrograms per cubic meter (1 microgram is one-millionth of a gram). 42 U.S.C. § 7473(b) (1) (Supp. III 1979); App. at 48a. Administrative Rules of Montana § 16.8.822 (1980); [1980] Montana Administrative Register 2402, 2430. Westmoreland Re- sources objected to this requirement in comments to the Board of Health and Environmental Services of the State of Montana (March 14, 1980). The State’s response effectively dismissed this objec- EPA’s interpretation of the 1977 Amendments is that particulate emissions from surface coal mines, whether fugitive or not, will consume the Class I increment. Air quality modeling of surface coal mines completed for the Northern Cheyenne during the redesignation proceeding shows that a mine located within fifteen kilometers of the reservation is likely to consume all of the increment for particulate matter. Gelhaus, Northern Cheyenne Reservation Diffusion Modeling Analysis 1. Many of petitioners’ properties are well within that distance. On August 5, 1977, the day EPA approved the re- designation, the 1977 Clean Air Act Amendments had passed Congress and were sitting on President Carter’s desk awaiting his signature. The Agency was aware of the potential effects of these Amendments on petitioners since petitioners had pointed them out to EPA. Com- ments of Westmoreland Resources, Inc. to EPA (May 25, 1977); App. at 107a. Yet, EPA continued to act as though the only impacts on petitioners would be those under its 1974 regulations. EPA’s unequivocal statement on August 5 that surface mining “would not“ be affected by a redesignation had to be false when made. And, after passage of 1977 Amendments, EPA proceeded to realize petitioner’s worst fears by interpreting the Amendments to produce severe adverse consequences for surface coal mining on nearby lands. B. Since EPA Knew It Was Likely That Petitioners Would be Affected, It Was Required to Consider Their Comments. Since petitioners were likely to be adversely affected by the Class I redesignation, they had a right to partici- pate in the rulemaking and have EPA consider their tion, but the State decided to apply automatically the strict visibil- ity rules in the future only to Class I areas in which visibility is deemed an important value. [1980] Montana Administrative Regis- ter at 2430. 10 comments. 5 U.S.C. § 553 (1976). Petitioners on several occasions had informed EPA of the joint impact of the redesignation and the 1977 Amendments on surface mining, and submitted comments which EPA continually ignored. After Congress passed the 1977 Amendments, EPA had a duty to reconsider its earlier flat statement that coal mining “would not” be affected. Nonetheless, it did not do so. Nor did EPA await enactment of the Amendments as petitioners urged. Rather, EPA rushed through the Class I designation the day after Congres- sional approval of the bill reported from the Conference Committee and two days before the President signed it into law. EPA approved the redesignation knowing that if it waited a moment longer, the Amendments would become law and petitioners’ objections to the redesigna- tion would have to be considered. By acting immediately, petitioners’ objections could conveniently be ignored and the redesignation would, by a “grandfather clause,” re- main effective. 42 U.S.C. § 7472(a) (Supp. III 1979). Unfortunately, petitioners’ rights to have their concerns taken into account in an administrative decision affecting their livelihood were trampled in the process. Under these circumstances, it was arbitrary and capricious for EPA not to consider the impacts of the redesignation on surface mining on the theory that petitioners would not be affected by the redesignation. II. REVIEW OF THIS NOVEL QUESTION OF LAW MUST COME NOW IF PETITIONERS ARE NOT TO RISK LOSING FOREVER THEIR RIGHTS TO HAVE EPA CONSIDER THE EFFECTS OF THE REDESIGNATION ON THEM. If the Court chooses not to issue a Writ of Certiorari to the Ninth Circuit Court of Appeals, petitioners’ op- portunities for later review of the Class I redesignation regulation are likely to be foreclosed. Section 307(b) (1) of the Clean Air Act, as amended, id. § 7607(b) (1), requires: 11 Any petition for review.. . [to] be filed within sixty days from the date notice of such promulgation, approval or action appears in the Federal Register, except that if such petition is based solely on grounds arising after such sixtieth day, then any petition for review. . shall be filed within sixty days after such grounds arise. (emphasis supplied) Section 307 (b) (2), id. § 7607 (b) (2), prohibits review in a subsequent civil or criminal enforcement proceeding of any final action of the administrator which, like the Class I redesignation, was reviewable under Section 307 (b) (1). Though the constitutionality of this preciusion provi- sion has been questioned, at least in the criminal con- text, Adamo Wrecking Co. v. United States, 434 U.S. 275, 289-91 (1978) (dissenting opinions of Justices Powell and Stewart), such limitations on reviewability may be relied upon to dismiss, with prejudice, “untimely” petitions for review. Indeed, the Northern Cheyenne argued in the court below that Section 307 bars review of constitutional issues raised by petitioners, and the United States took pains in its argument to avoid any admission that the future review of EPA’s approval of the Class I redesignation might not be barred by the 60 day rule. Because any future petition for review must be based solely on grounds arising after the initial sixty-day time for review has passed, it is at least likely that petitioners will not be able to obtain review of the Class I designa- tion at some later time. Since the decided cases give support to the claim that subsequent review may be precluded, a real danger to petitioners has been created. In Oljato Chapter of Navajo Tribe v. Train, 515 F.2d 654 (D.C. Cir. 1975), the court considered late petitions under the Clean Air Act for review of standards of per- 12 formance for new coal-fired powerplants. The petitioners in Oljato claimed to have new information to present. The court stated: . . . this case involves a general out-of-time challenge to the validity of an EPA standard, exactly what Congress intended to bar by limiting appeal (absent new information) to within 30 days of the rule’s promulgation). 515 F.2d at 659 n.6. Petitioners in Oljato were instructed to present their new information to EPA. Their petition for review was barred if the new information did not present grounds adequate for a new evaluation of the standard. Similarly, a utility filed a late petition for a review of emission standards in the Missouri SIP on the basis of new information concerning technological and economic infeasibility in Union Electric Co. v. Environmental Pro. Agey., 515 F.2d 206 (8th Cir. 1975), aff'd, 427 U.S. 246 (1976), rehearing denied, 429 U.S. 873. The court found that evidence of technological and economic infeasibility is not “new information” within the meaning of Section 307, and dismissed the petition as untimely filed. Moreover, as noted in Union Electric, 515 F.2d at 209 n.9, in an unreported order the Ninth Circuit, too, has dismissed a petition for review under Section 307 as untimely led. Kawasaki Motors Corp. v. Train, No. 74- 1697 (9th Cir. August 9, 1974), cert. denied, 420 U.S. 926 (1975). In short, if EPA’s actions are not reversed in this case and remanded for reconsideration, the Act, as amended, will permit EPA to argue that it can never be required to consider the impacts of the Class I redesignation on petitioners. Even worse, EPA is precluded by § 164(c) of the Clean Air Act, 42 U.S.C. § 7474(c) (Supp. III 1979), from redesignating an Indian reservation. Peti- 13 tioners, including the Crow Tribe, are thus left at the mercy of the Northern Cheyenne. Avoidance of judicial review in this matter will result in the approval of an arbitrary and capricious action: EPA will have successfully misled the public by alleging that petitioners would not be affected when it had reason to know that petitioners would be harmed. As a conse- quence, petitioners will be deprived of the only procedural protections they have, and coal development on public or tribal lands will be restrained without consideration of the energy impacts of the redesignation at a time when coal is needed to meet the nation’s energy demands. Moreover, a novel and troublesome legal issue requiring an early and definitive ruling by this Court will remain unanswered. III THE ENVIRONMENTAL PROTECTION AGENCY BREACHED THE GOVERNMENT’S FIDUCIARY OBLIGATIONS TO THE CROW TRIBE IN APPROV- ING THE REDESIGNATION OF A CLEAN AIR AREA ADJACENT TO CROW LAND WITHOUT CONSIDERING THE OBJECTIONS OF THE TRIBE, WHERE THE REDESIGNATION WILL ADVERSE- LY AFFECT THE ABILITY OF THE TRIBE TO MINE COAL ON THEIR LAND. Even if EPA had no obligation to consider the effect of the all-but-signed 1977 Amendments on the coal min- ing petitioners, surely the “distinctive obligation of trust incumbent upon the Government in its dealings with these dependent and sometimes exploited people” imposes on EPA a higher obligation to deal fairly with the Tribe. Seminole Nation v. United States, 316 U.S. 286, 296 (1942). EPA’s “conduct, as disclosed in the acts of those who represent it in dealing with the Indians, should there- fore be judged by the most exacting fiduciary standards.” Id. at 297. The right of the Crow Tribe to “the absolute and undisturbed use and occupation” of tribal lands is 14 further provided for by treaty. Treaty with the Crows, 15 Stat. 649 (1868). This right is now abridged because of restrictions placed on coal mining by the redesignation of the Northern Cheyenne Reservation, and EPA allowed this right to be abridged without proper exercise of the government’s fiduciary obligations to the Crow Tribe. First, even though the government had a fiduciary duty to protect the Crows, EPA decided to ignore the objec- tions of the Chairman of the Crow Tribe because the technicality of a formal protest from the Tribe was lack- ing. Second, the Agency used its own misleading asser- tion that the Tribe would not be affected to justify not listening to the Crow objection. The government’s fiduciary duty to the Crows is like the duty of any fiduciary. See generally Seminole Nation, 316 U.S. at 294-97; United States v. Creek Nation, 295 U.S. 103, 109-110 (1935); Cramer v. United States, 261 U.S. 219 (1923); Menominee Tribe v. United States, 101 Ct. Cl. 10 (1944); Manchester Band of Pomo Indians, Inc. v. United States, 363 F. Supp. 1238 (N.D. Cal. 1973). In particular, the government cannot carry on activities on land adjacent to a reservation where the activity serves to diminish the value of the reservation as a trust asset and source of income. For example, in Pyramid Lake Paiute Tribe of Indians v. Morton, 354 F. Supp. 252 (D. D.C. 1973), diversions of water for a federal dam proj- ect reduced, downstream, the level of a lake and thus its value as a trust asset; the water diversion also increased the lake’s salinity and impeded upstream spawning, and therefore, decreased the value of the lake as a fishery. Even in the absence of a violation of any specific statute or treaty, the operation of the project was held to violate the government’s trust duty to the tribe. Like the dam project in Pyramid Lake, the air quality restrictions placed upon the Northern Cheyenne Reservation impede the ability of the Crow Tribe to produce income from their own land and decrease the value of the land as a trust asset. 15 Under the amended Clean Air Act, the redesignation of the Northern Cheyenne Reservation carries serious con- sequences for the Crow Tribe in restricting the develop- ment of the Crow’s coal resources. Yet, neither the De- partment of the Interior nor EPA satisfied the govern- ment’s fiduciary duty to the Crow Tribe. To avoid hav- ing to weigh the conflicting interests of the Crow and Northern Cheyenne Tribes, the Department of the In- terior attempted to shift the government’s fiduciary duty to EPA by declining to give its required approval to the redesignation. Letter from James A. Joseph, Undersecre- tary of the Department of the Interior to Douglas Costle, EPA Administrator (June 23, 1977). App. at 113a. EPA in turn attempted to free itself from its fiduciary responsibility by using a technicality. See 42 Fed. Reg. 40,697 (1977). EPA claimed that because it had received no official protest from the Crow Tribal Council, it could ignore the protests which had been received from the Chairman of the Tribe. Id. This failure to review the merits of the redesignation because of a procedural tech- nicality constituted a failure to execute the government’s fiduciary duty to the Tribe. Moreover, the fact that no formal protest was filed is in no small measure attributable to EPA’s own miscon- duct. Had EPA not falsely reassured the Tribe that their surface mining activities would not be affected, the Crow Tribal Council, comprised of all members of the tribe, would have been better able to assess the effect of the redesignation. Indeed, had it not been for EPA’s re- assurances, the Council might have decided to file a for- mal protest with the Secretary of the Interior on behalf of the Council as a whole, rather than to act through the Tribal Chairman. It should not be held against the Tribe that no formal protest was filed when a primary reason that the Council took no action was EPA’s representations that surface mining would not be affected by the redesig- 16 nation. As the Ninth Circuit has stated in a non-Indian tribe context, “[t]o say to these appellants, ‘The joke is on you. You shouldn’t have trusted us,’ is hardly worthy of our great government.” Brandt v. Hickel, 427 F.2d 53, 57 (9th Cir. 1970). See also United States v. Lazy FC Ranch, 481 F.2d 985, 988 (9th Cir. 1973); United States v. Georgia-Pacific Company, 421 F.2d 92, 100 (9th Cir. 1970) ; Moser v. United States, 341 U.S. 41 (1951). It is even less worthy of the government to mislead an Indian tribe which looks to the government for protection as its trustee. Notwithstanding the formal aspects of the protest, the government still had a substantive fiduciary duty to the Tribe. As a result of EPA’s failure to respond to the concerns of Undersecretary Joseph of the Department of the Interior and of the Chairman of the Crow Tribe, as the court below found, “the responsibility to exercise [the government’s] fiduciary obligations is fairly placed upon the EPA.” 645 F.2d at 711. EPA breached this duty by refusing to consider the Tribe’s comments in approving the redesignation. The reasoning of the Court of Ap- peals, that EPA’s assertion that there were no effects (even though it knew about the pending 1977 Amend- ments) somehow freed the Agency from examining the claims of the Crow Tribe, is circular argument at its worst. The Agency’s claim that the redesignation would have no effect on the Tribe cannot possibly justify the Agency’s failure to consider the Tribe’s claim that effects did exist. Since the Crow and Northern Cheyenne are neighboring tribes, one tribe’s clean air preference will necessarily affect the land of the other tribe; that some choice among preferences must be made is understood. EPA can not make this choice in favor of one tribe, however, while re- fusing even to listen to the arguments of the other tribe. Further, such a choice should not be made based on a 17 procedural technicality. Herein lies EPA’s breach of its fiduciary obligations to the Crows. CONCLUSION For the reasons stated, the petition for a Writ of Cer- tiorari should be granted. Alternatively, the Court may wish to consider summary reversal of the Court of Ap- peals and remand to EPA. URBAN BEAR DON’T WALK 301 N. 27th Street Billings, Montana 59101 (406) 259-3080 Attorney for Petitioner Crow Tribe of Indians, Montana TERRY O'CONNOR 12015 E. 46th Avenue Denver, Colorado 80239 (303) 371-7990 Attorney for Petitioner Peabody Coal Co. August 17, 1981 Respectfully submitted, WILLIAM A. WHITE Counsel of Record GEORGE J. MILLER DECHERT Price & RHOADS 888 Seventeenth Street, N.W. Washington, D.C. 20006 (202) 872-8600 Attorneys for Petitioner Westmoreland Resources, Inc. WILLIAM E. MuRANE PAUL D. PHILLIPS HOLLAND & HART P.O. Box 8479 Denver, Colorado 80201 (303) 575-8000 Attorneys for Petitioners Marcus L. Nance, Nance Cattle Co., and Thermal Energy, Inc. APPENDICES TABLE OF CONTENTS Opinion of U.S. Court of Appeals for the Ninth Deer Decision of EPA to Approve Redesignation, Effec- tive August 5, 1977, 42 Fed. Reg. 40,695 (1977) Excerpts of PSD and Preclusion of Judicial Review Provisions of Clean Air Act as Amended, 42 U.S.C. EE Excerpt of PSD Regulations in Effect at Time of Redesignation, 40 C. F. R. § 52.21 (197777 Excerpts of PSD Regulation Currently in Effect, 40 C. F. R. § 51.24 (1980), as amended whi 45 Fed. C Comments of Westmoreland Resources, Inc. to the Environmental Protection Agency (May 25, 1977) Letter from James A. Joseph, Undersecretary of the U.S. Department of the Interior, to Douglas Costle, EPA Administrator (June 23, 1977) ......... Page la 36a 46a 674 82a 107a 113a la APPENDIX A Opinion of U.S. Court of Appeals for the Ninth Circuit United States Court of Appeals Ninth Circuit Nos. 77-3058, 77-3301, 77-3305, 77-3356, 77-3374 and 79-7261 Marcus L. NANCE et al., ¥ Petitioners, ENVIRONMENTAL PROTECTION AGENCY, Respondent. NORTHERN CHEYENNE TRIBE et al., Intervenors. THERMAL ENERGY, INC. et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. NORTHERN CHEYENNE TRIBE et al., Intervenors. AMAx COAL COMPANY, * Petitioners, ENVIRONMENTAL PROTECTION AGENCY, Respondent. NORTHERN CHEYENNE TRIBE et al., Intervenors. 2a Crow INDIAN TRIBE, MONTANA, * Petitioner, ENVIRONMENTAL PROTECTION AGENCY, Respondent. NORTHERN CHEYENNE TRIBE, Intervenor. WESTMORELAND RESOURCES, * Petitioner, ENVIRONMENTAL PROTECTION AGENCY, Respondent. NORTHERN CHEYENNE TRIBE, Intervenor. WESTMORELAND RESOURCES, - Petitioner, ENVIRONMENTAL PROTECTION AGENCY, Respondent. NORTHERN CHEYENNE TRIBE, Intervenor. Argued March 4, 1980 Submitted April 24, 1981 Decided May 18, 1981 Petition for Review of an Action of the Environmental Protection Agency 3a Before TANG, SCHROEDER and NELSON, Circuit Judges. NELSON, Circuit Judge: In this case, petitioners challenge the approval by the Environmental Protection Agency (EPA) of the North- ern Cheyenne Tribe’s redesignation of its reservation from Class II to Class I air quality standards. The major issue presented con be rather simply described. When an agency takes administrative action expressly on the then correct assumption that the action will not affect the rights of various parties, some of whom actively inter- vene in the proceedings, and immediately after such ac- tion becomes final a law is passed which causes the ad- ministrative action to have a potential direct effect of the sort it was previously expressly asserted it would not have, is such administrative action thereby rendered arbi- trary and capricious or otherwise invalid? We hold that the EPA’s action was not arbitrary or capricious and, therefore, affirm the Agency’s approval of the Northern Cheyenne Tribe’s redesignation of its reser- vation from Class II to Class I air quality standards. Further, we affirm the denial by the EPA of the petition by Westmoreland Resources to vacate EPA approval of the redesignation and to remand the redesignation ques- tion to the Northern Cheyenne for reconsideration. Peti- tioners assert numerous other flaws in the proceedings which, they contend, require this court to overturn the EPA action. For reasons given below we are compelled to reject these contentions. Statement of Facts The facts are particularly crucial in this case because of the importance of the timing of the various events. Pursuant to the decision in Sierra Club v. Ruckelshaus, 344 F.Supp. 253 (D.D.C.1972), aff'd 4 Envir.Rep. 1815 4a (D.C.Cir.), aff'd by an equally divided court sub. nom. Fri v. Sierra Club, 412 U.S. 541, 93 S.Ct. 2770, 37 L.Ed.2d 140 (1973), the EPA promulgated regulations (PSD regulations) designed to prevent the significant deterioration of the air quality in areas cleaner than re- quired by the national secondary air quality standards. 40 C.F.R. § 52.21 (1975). These PSD regulations were published on December 5, 1974. Under these regulations, all areas of the country which had cleaner air than re- quired by the national standards were to be designated as Class I, Class II, or Class III. All clean air areas were initially designated as Class II, under which a moderate amount of deterioration of air quality would be allowed, but procedures were provided by which such areas could be redesignated Class I, under which very little deteriora- tion and hence very little development is allowed, or Class III, under which the quality of the air in the area may deteriorate to the national secondary air quality stand- ards. Specific procedures were provided by which an In- dian Tribe governing body could redesignate its reserva- tion from Class II to either Class I or III. 40 C.F.R. § 52.21(c) (1975). The Tribal Council of the Northern Cheyenne Tribe, Intervenors in this action, decided on May 3, 1976, to request the EPA administrator to reclassify the reserva- tion from Class II to Class I. On May 13, the Tribe ad- vised the EPA of the proposed redesignation, and for- mally confirmed its proposal by letter dated July 9, 1976. After notifying various federal, state, and local officials, as well as certain citizens’ groups, the Tribe began prepa- ration of a report which was to discuss the social, en- vironmental, and economic effects of the proposed redesig- nation. Volume I of this report, “The Northern Cheyenne Air Quality Redesignation Report and Request,” was is- sued on December 11, 1976, and comprised well over 200 pages. Following distribution of this report to various 5a agencies and interested parties, and notification of a pub- lie hearing on the proposed redesignation, such hearing was held in Lame Deer, Montana, on January 17, 1977. On March 7, 1977, the Tribe formally submitted its pro- posal for redesignation to the EPA, accompanied by a final report, the hearing transcript, and written com- ments and responses. EPA regulations then in force required the agency to take action on such a redesignation proposal within 90 days, 40 C.F.R. § 52.21(c) (3) (vi) (1975), in this case by June 5, 1977. On April 29, 1977, EPA published notice that it intended to approve the redesignation of the North- ern Cheyenne Reservation to Class I, and solicited com- ments on such redesignation through May 31, 1977. On June 10, 1977, the EPA Administrator announced that the time for receiving public comments would be extended until June 30, 1977. On August 5, 1977, the Administra- tor published his approval of the redesignation, effective immediately, which was accompanied by a 5l-page “EPA Support Document” detailing the reasons for such ap- proval. 42 Fed.Reg. 40695 (1977). Petitioners assert the following grounds for overturn- ing the action of the EPA in this case: (1) The decision of the Cheyenne Tribe to redesignate the reservation as a Class I area and the EPA’s subsequent approval of that proposal were arbitrary and capricious insofar as they failed to consider the effects of such redesignation on strip mining; (2) The redesignation was ineffective because of lack of publication prior to the enactment of the 1977 Clean Air Act Amendments, and hence the purported re- designation was not ratified by those amendments; (3) The EPA violated its own regulations in failing to obtain the Secretary of the Interior’s approval of the redesigna- tion on behalf of Indian trust lands affected, or, in the alternative, the EPA breached the United States’ trust obligations to the Indians; (4) The Cheyenne Tribe sup- 6a port document was insufficient under the EPA’s regula- tions; (5) The Clean Air Act did not authorize the dele- gation to Indian Tribes of the power to redesignate their reservations, and if it did so authorize, it was unconsti- tutional; (6) The redesignation effected a taking of the petitioner’s coal mining interests without due process and without just compensation in violation of the fifth amend- ment to the Constitution; (7) The delegation to the In- dian governing bodies of redesignation authority which affected land use outside the reservation area violated the tenth amendment to the Constitution. Standard of Review Judicial review of the Administrator’s action in this case is governed by section 10(e) of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A)-(D). Under this section, we must determine whether the EPA’s approval of the redesignation proposal by the Northern Cheyenne is invalid as arbitrary, capricious, or an abuse of discre- tion, id. § 706 (2) (A), or unconstitutional, id. § 706(2) (B), or in excess of legislative authority, id. § 706(2) (C), or procedurally defective, id. § 706 (2) (D). With respect to review under the “arbitrary and capricious” standard, the reviewing court is limited to deciding whether there has been a clear error of judgment by the agency and whether the agency action was based on a consideration of the relevant factors. Citizens to Pre- serve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1970). I Were the Northern Cheyenne’s Decision to Redesignate and the EPA’s Approval of that Proposal Arbitrary and Capricious Petitioner’s primary complaint is that it was arbitrary and capricious for the Northern Cheyenne Tribe to re- designate its reservation, and subsequently for the EPA 7a to approve such redesignation, without considering the impact of the redesignation on strip mining in the sur- rounding area. It is undisputed that under the regulations in effeet at the time the redesignation was proposed, only 19 sources of pollution were subject to permit procedures, and that these sources did not include strip mines. In a meeting sometime before the end of October, 1976, EPA repre- sentatives assured the Coordinator of the Northern Chey- enne Research Project that sources not specifically cov- ered by the regulation would not be affected. On October 29, 1976, the Coordinator wrote to the EPA Regional Ad- ministrator : In a recent meeting with representatives of your Office . . , we were assured that a Class I designation . would affect only those point sources listed in the regulations. Simply put, this would mean that point sources not listed, such as mining operations, . , ete., are not covered by PSD regulations. This matter has been clouded in our minds for some time and we feel relieved to know the agency’s position. The Regional Administrator responded to a request for written documentation of its position in a letter of No- vember 4, 1976: [The letter of October 29] asks for verifica- tion of [the EPA representative’s] interpretation of what sources are affected by the PSD regulation. As was indicated verbally, operations such as mining, highway construction, and slash burning are not among the 19 point source categories requiring a per- mit to construct under the PSD regulation. It should be noted, however, that when one of the 19 PSD sources is under consideration for a permit, the im- pact of any operation, such as mentioned . . ., com- ing into existence after January 2, 1975 must be in- cluded in evaluating the increment available. 8a It was repeatedly emphasized both in the December, 1976 “Northern Cheyenne Air Quality Redesignation Report and Request” and at the January, 1977, hearings, as well as in response to written comments, that mining would not be covered by the PSD regulations. In the April 29 publication of the notice of proposed approval of the re- designation the EPA specifically noted that “[s]ince coal mining is not one of the nineteen source categories re- quiring preconstruction review, and hence would not re- quire a PSD construction permit, redesignation of the Northern Cheyenne Reservation would not directly affect mining either on the reservation or in areas adjacent to the reservation,” 42 Fed.Reg. 21820 (1977), and in the August 5, 1977, notice of approval reiterated that Aslinee strip mines are not subject to the preconstruc- tion review program of the PSD regulation, they would not be directly affected by a redesignation.” 42 Fed.Reg. 40697 (1977). It is not disputed that, according to the regulations then in force, the above statements were cor- rect. Thus, it is clear that the Northern Cheyenne Tribe and the EPA did consider whether strip mining would be af- fected by the redesignation. The EPA and the Tribe con- cluded, on the basis of the regulations then in effect, that strip mining would not be affected. Petitioner’s real complaint is with the effect of the re- designation when coupled with the Clean Air Act Amend- ments of 1977. These amendments added to the sources covered by the preconstruction review program any source emitting in excess of 250 tons of any pollutant per year. Section 162(a) of the Amendments provided that any areas designated Class I prior to the enactment of the statute would remain Class I under the statute. 42 U.S.C. § 7472. The Northern Cheyenne Reservation was the only such area. Petitioners and intervenors (other than the Cheyenne Tribe) assert that the EPA and Cheyenne Tribe 9a should have taken account of the pending legislation in redesignating the reservation and that their failure to do so was arbitrary and capricious. Analysis of this claim requires a chronology of the enactment of the Amend- ments into law. The origins of the 1977 Clean Air Act Amendments are to be found in a 1976 bill which was reported by the con- ference committee but died as a result of a filibuster in the Senate. See 122 Cong.Rec. S17568-70, S17573-4. A new bill was introduced in 1977 which passed the House of Representatives on May 26, 1977. On June 10, 1977, the Senate passed an amended version of the bill. See 123 Cong.Rec. 18515 (1977). The Conference Committee re- ported the bill to both the House and the Senate on Au- gust 4, 1977, and both houses approved it the same day. 123 Cong.Rec. 26856, 27079 (1977). The EPA approved the redesignation on the following day, August 5. Actual publication of EPA approval took place one week later. The President signed the 1977 Clean Air Act Amend- ments into law on August 7, 1977. There are several flaws in the petitioners’ theory that the Tribe and the EPA were required to take this legis- lation into account in considering the proposed redesigna- tion by the Cheyenne Tribe. First, it is far from clear that strip mining will ever be subject to PSD regulation. The PSD permit procedure applies to any source which emits more than 250 tons per year of any pollutant, but there has been considerable dispute as to the meaning of “source” and whether it includes such facilities as strip- mines. Furthermore, it is not clear to what extent the EPA is required or has discretion to consider fugitive emissions as part of this 250 tons. The inclusion of fugi- tive emissions (i.e. emissions from a facility that escape other than from a point source) in meeting the 250 tons per year threshold is important to this case because fugi- tive particulate emissions are the primary pollutant re- 10a leased from surface mines. If fugitive emissions are ex- cluded, it is doubtful that strip mining will be subject to PSD review. Two recent events make these ambiguities in the legis- lation manifest. First, the District of Columbia Court of Appeals decided Alabama Power Co. v. Costle, 636 F.2d 323 (D.C.Cir. 1979). In Alabama Power, the court con- sidered, inter alia, whether the EPA may include fugitive emissions in determining whether a source emits more than 250 tons a year of pollutants. Although the court upheld EPA’s position that sources of fugitive emissions were encompassed in the PSD provisions, it found that section 302(j) “specifically attaches a rule-making re- quirement for the inclusion of fugitive emissions” in the calculation whether an emitting facility qualifies as “major”. At 369. This rulemaking requirement was found to apply to the “catch-all” provision of section 169(1), which subjects sources producing greater that 250 tons of fugitive emissions per year to PSD permit procedures. Id. at 369-370. The effect of Alabama Power is to require the EPA to engage in legislative rulemaking before fugitive emissions from strip mining can be con- sidered in determining whether the source emits more than 250 tons per year. Alabama Power, therefore, lends support to the con- clusion tuat the 1977 Clean Air Act Amendments were in- deed ambiguous as to whether strip mining is subject to PSD regulations. This conclusion is buttressed by the EPA’s response to the Alabama Power decision. The EPA has issued a rule that includes fugitive emissions in determining whether a source is major only for 26 speci- fied types of sources. Strip mining is not one of these 26 sources. 45 Fed.Reg. 52690 (1980). Thus, under pres- ent regulations governing fugitive emissions, strip mines are not to be subject to PSD review unless non-fugitive emissions exceed 250 tons per year. See 45 Fed.Reg. 52690 (1979). lla A second reason why it is unclear that the EPA should have taken the proposed Amendments into account is the uncertainty as to when enactment became sufficiently probable as to require its consideration. The earliest date at which the bill took a fairly final form was upon its reporting by the Conference Committee on August 4, 1977. Even then, the bill might have been subject to fur- ther amendment, filibuster, or even defeat. It does not appear either from the record or from the many briefs presented to this court that passage of the Clean Air Act Amendments in their final form was assured at any time significantly before August 4. On the other hand, the fact remains that EPA approval was not filed until August 5, 1977, the day after both houses of Congress had approved the amendments. More- over, contrary to usual procedure, the approval was made effective immediately, even though notice was not pub- lished until August 11, four days after the President had signed the bill. The conclusion is thus compelled that on the date the EPA finally approved the redesignation, it knew that the 1977 Clean Air Act Amendments would be passed and signed into law. The question before this court is whether, in light of that knowledge, the EPA’s approval of the re- designation was arbitrary and capricious. Two reasons for concluding that it was not were stated above: (1) strip mining is still not subject to PSD regulation under the 1977 Amendments to the Clean Air Act, and (2) the final form of the 1977 Amendments was not assured until the bill was reported from the Conference Committee on August 4, 1977. A third reason is that the EPA was not certain the Amendments would be passed and signed into law until well after all agency action preliminary to final approval, all comments, and all hearings had occurred, and well 12a after final agency action was both expected and required by regulations. The decision of the Supreme Court in Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978), makes clear that there must be an end to the period during which the agency must reopen the record to consider new facts. The Court quoted from its earlier opinion in JCC v. Jersey City, 332 U.S. 503, 514, 64 S.Ct. 1129, 1134, 88 L.Ed. 1420 (1944): Administrative consideration of evidence . . . always creates a gap between the time the record is closed and the time the administrative decision is promul- gated [and, we might add, the time the decision is judicially reviewed] .... If upon the coming down of the order litigants might demand rehearings as a matter of law because some new circumstance has arisen, some new trend has been observed, or some new fact discovered, there would be little hope that the administrative process could ever be consum- mated in an order that would not be subject to re- opening. 435 U.S. at 554-55, 98 S.Ct. at 1217. This is not to say that pending legislation should never delay or influence the administrative process. But it is for the agency, not for this court, to decide whether the proceeding should be reopened to consider such pending legislation, unless the failure to reconsider is “arbitrary and capricious.” See Northern Lines Merger Cases, 396 U.S. 491, 520-21, 90 S.Ct. 708, 722, 24 L.Ed.2d 700 (1949); City of Santa Rosa v. EPA, 534 F.2d 150, 153 (9th Cir. 1976). All that need be held here is that there the effect of legisla- tion on future agency action is unclear, and passage of the legislation is not assured until after all action pre- liminary to the agency rendering a final decision has been taken, and the time has passed during which the agency would normally be required to render that final decision, 13a it was not arbitrary and capricious for the agency to ap- prove a proposed change in air quality standards that did not take account of pending legislation. II Was the Redesignation Effectivce on Approval Petitioners argue that the redesignation was not ef- fective prior to the enactment of the 1977 Clean Air Act Amendments and was, therefore, not ratified by those amendments. This dispute revolves around whether the redesignation could be made effective immediately upon approval, and before actual publication and a 30 day pe- riod for notice. Under the Administrative Procedure Act, a substantive rule must be published 30 days before its effective date except “as otherwise provided by the agency for good cause found and published with the rule.” 5 U.S.C. § 553 (d). The legislative history of 5 U.S.C. § 553(d) indicates that the primary purpose of the provision was not to en- courage prepublication dialogue, but rather to permit petitions for reconsideration and “to ‘afford persons af- fected a reasonable time to prepare for the effective date of a rule or rules or to take other action which the issu- ance may prompt.’” United States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 1977) (quoting S. Rep.No. 752, 79th Cong., Ist Sess. 15 (1946); H.R. Rep.No.1980, 79th Cong., 2d Sess. 25 (1946)). In determining whether good cause exists, an agency, and a reviewing court, should consider whether the necessity for immediate implemen- tation outweighs any hardship affected persons might ex- perience because of the reduced time to adjust to the new rule. See id. at 1105. In the publication of its approval, the EPA asserted that there was good cause for making the action effective immediately because the EPA had “been holding in abey- l4a ance a preconstruction permit request pending final ac- tion” and “no useful purpose would be served by defer- ring the effectiveness of this action for thirty days be- cause new applications for construction would have to be evaluated in light of this action in any event.” 42 Fed. Reg. 40695 (1977). Petitioners argue that these reasons given by the EPA are insufficient to constitute good cause. The EPA, however, neglected to mention what was un- doubtedly its primary motivation: to assure that the re- designation was effective prior to enactment and thus re- mained effective under the amendments. This latter pur- pose may be considered by the court inasmuch as it was implicit in the explicitly stated justification and was ad- ditionally, as asserted by the petitioners, obvious from the circumstances. See Texaco Inc. v. FEA, 531 F.2d 1071, 1082-83 (Em.App. 1976); State of California v. Simon, 504 F.2d 430, 439 (Em.App. 1974). Much time and effort had gone into these redesignation proceedings, and if the redesignation were not effective immediately, the proceedings would have to be undertaken again. Fur- thermore, immediate effectiveness was necessary to avoid undue prejudice and hardship to the Northern Cheyenne Tribe, since, according to the EPA’s own regulations the redesignation should have been approved long before. Because the petitioners in this case were aware of the proposed redesignation and suffered almost no adverse effects as a result of the noncompliance with the thirty- day requirement, their hardship was outweighed by the Agency’s need to put the order into immediate effect. See Kollett v. Harris, 619 F.2d 134, 144-45 & n. 15 (1st Cir. 1980) (despite complete noncompliance with 5 U.S.C. § 553(d), good cause was found where regulations were needed to implement new legislation and no prejudice was demonstrated). Thus, good cause existed excusing the failure to comply with 553(d) and the redesignation was effective on the date of publication. 15a Petitioners cite Texaco Inc. v. FPC, 412 F.2d 740 (3rd Cir. 1969) for the proposition that when major legisla- tion is imminent that promises to alter significantly the impact of a proposed administrative rule, the agency should be charged with a duty to utilize the 30-day period to “educate itself” about the combined effect of the rule and the legislation. As Respondents point out, however, Texaco can be distinguished because in that case the Fed- eral Power Commission failed to provide notice or a hear- ing before promulgating an order, 412 F.2d at 742-43. In this case, petitioners suffered no adverse effect because of their failure to receive notice of the final ruling im- mediately, and indeed had been notified in advance that the redesignation would be effective upon approval. 42 Fed.Reg. 21819 (1977). For these reasons we hold that the EPA could make its decision effective upon approval on August 5, 1977. III (a) Did the EPA violate its own Regulations by Fail- ing to Obtain the Approval of the Secretary of the Interior Several intervenors, and in particular the Crow Tribe, argue that the EPA did not follow its own regulations requiring it to obtain approval from the Department of the Interior for actions affecting Indian Trust lands. 40 C. F. R. § 52.21 (e) (3) ( (1975) provides in part: Where a State has not assumed jurisdiction over an Indian Reservation the appropriate Indian Govern- ing Body may submit to the Administrator a pro- posal to redesignate areas Class I, Class II, or Class III, provided that: (b) Such redesignation is proposed after consulta- tion with the State(s) in which the Indian Reserva- 16a tion is located or which border the Indian Reserva- tion and, for those lands held in trust, with the ap- proval of the Secretary of the Interior. The Crow contend that the EPA failed to obtain the requisite approval by the Secretary of the Interior. The facts appear to be as follows. On March 21, 1977, two weeks after formal submission of the redesignation pro- posal, the EPA received a letter from the Northern Chey- enne Agency of the Bureau of Indian Affairs, Depart- ment of the Interior, which noted that EPA regulations required approval of the Secretary of the Interior for the proposed redesignation. In that letter, the Superintendent of the Northern Cheyenne Reservation reaffirmed the “Agency’s endorsement of the subject Tribal resolution”, and added that if such action did not meet the EPA re- quirements, clarification should be sought from the Office of the Secretary of the Interior. In its April 29, 1977, notice of proposed approval of the redesignation, the EPA noted its doubts that this communication satisfied the pro- cedural requirements and added that it was seeking fur- ther clarification before reaching a final decision. 42 Fed.Reg. 21820 (1977). On May 9, 1977, the Administrator wrote to the Secre- tary of the Interior requesting such clarification. The letter stated that the EPA was “requesting clarification regarding whether the Tribal Council is proposing the re- designation with the approval of the Secretary of the In- terior as required by our regulation.” Undersecretary James A. Joseph responded to this letter on June 23, 1977. The key passage follows: In the instant case the tribal council sought and re- ceived the consent of the Agency Superintendent to forward the proposal to EPA to satisfy the require- ment of 40 CFR 52.21 that the Secretary of the In- terior approve submission of the proposal. The 17a Agency Superintendent has the authority to act in behalf of the Secretary in approval of tribal leases, acceptance of tribal resolutions and ordinances, and approval of matters such as the one at issue, by vir- tue of a series of delegations of authority from the Secretary. [citations omitted] We hold the above communications sufficient to meet the requirement that the redesignation be approved by the Secretary of the Interior. (b) Did the EPA Fulfill the United States’ Trust Ob- ligations to the Crow Tribe A separate question is whether the EPA violated the federal government’s trust obligations to the Indians. Su- preme Court decisions require the trust obligation owed by the United States to the Indians be exercised accord- ing to the strictest fiduciary standards, United States v. Mason, 412 U.S. 391, 398, 93 S.Ct. 2202, 2207, 37 L.Ed.2d 22 (1973); Seminole Nation v. United States, 316 U.S. 286, 296-97, 62 S.Ct. 1049, 1054, 86 L.Ed. 1480 (1942). The Crow Tribe claims that the EPA, in failing to con- sider the interests of the Crow, neglected these fiduciary obligations. The following facts are relevant to this claim. In the above mentioned letter of June 23, 1980, Under- secretary of the Interior, James A. Joseph, also informed the EPA of certain concerns of the Crow Tribe regard- ing the potential effect of a redesignation of the Northern Cheyenne territory. The Crow Tribe has raised certain trust concerns regarding the effect on the Crow Reservation of the Northern Cheyenne proposal to redesignate their air quality standards. The United States has a trust re- sponsibility to Indian Tribes, separate and apart from the requirements of 40 CFR 25.21. 18a The Crow Tribe is concerned about the effect the Northern Cheyenne redesignation will have on Crow development, and whether they will have to seek Northern Cheyenne approval before implementing de- velopment plans. Inasmuch as EPA has the neces- sary technical expertise to review the impacts on both Tribes as interrelated actions, this Department feels that the United States’ obligation to the Tribes would best be satisfied by such review. If a redesignation is to be made, we would appreciate being informed of the impact and alternatives avail- able to the respective Tribes before final action is taken. Furthermore, counsel to the Crow Tribe wrote to the Regional Office of the EPA on June 12, 1977, requesting that the EPA “proceed in a trustee or fiduciary relation- ship with regards to the {Northern Cheyenne] redesig- nation as to the Crow Tribe.” Although no response to this letter is in the record, on August 5, the date the EPA approved the redesignation, the Administrator wrote to the Secretary of the Interior as follows: In his June 22, 1977, letter Undersecretary James A. Joseph suggested that EPA review the impacts of the redesignation upon Crow development. In the ab- sence of an official protest from the Crow Tribe, EPA’s authority to review these impacts and use the results as criteria for approval or disapproval of the proposed redesignation are limited. However, the Northern Cheyenne did evaluate the potential im- pacts and, as discussed in the enclosed documenta- tion, the impacts upon Crow development should not be significant. Two questions are presented by this set of facts. First, was the EPA required to proceed in a Trustee capacity vis a vis the Crow Tribe, and second, if it was so re- quired, did it fulfill that obligation? It is fairly clear 19a that any Federal government action is subject to the United States’ fiduciary responsibilities toward the Indi- an tribes. See Seminole Nation v. United States, 316 U.S. 286, 297, 62 S.Ct. 1049, 1054, 86 L.Ed. 1480 (1942). As a result of the letters from the Undersecretary of the In- terior, and the Crow Tribe, and the failure of the EPA to respond to those letters before approving the redesig- nation, the responsibility to exercise those fiduciary obli- gations is fairly placed upon the EPA. So, we must consider whether the EPA fulfilled the United States’ fiduciary obligations toward the Crow Tribe. Preliminarily, we note that adequate procedures were provided by the Clean Air Act and the EPA regu- lations to fulfill this responsibility. The Crow Tribe was consulted by the Northern Cheyenne before redesignation was proposed and it had full opportunity to participate in the public hearing. Moreover, all the Crow Tribe was re- quired to do activate the full panoply of protection against a redesignation that would adversely affect its interest was to lodge an official protest against such redesignation. 40 C. F. R. § 52.21 (e) (3) (vi) (e) (1975). This they did not do Despite the adequacy of procedural protections, the question remains whether the EPA in substance fulfilled its trust obligations. The primary concern of the Crow from the beginning of the redesignation procedure was clearly the potential impact of such a redesignation on their ability to mine coal. It is in this respect that they now claim that the EPA failed to exercise its trust re- sponsibilities. However, in specifically finding that the redesignation would not, under the law as it stood at that time, have any effect on strip mining, the EPA adequately addressed the Crow’s interest in this regard. That the assumption may have turned out as a result of subsequent events to have been wrong does not affect the answer to 20a the question of whether the fiduciary responsibilities were fulfilled in the first place. In addition, it must be noted that the Government also has a fiduciary relationship with the Northern Cheyenne Tribe. That tribe has an interest in avoiding further de- lay before EPA action on the proposed redesignation. In light of these conflicting fiduciary responsibilities and the strong possibility that the Crow tribe would not be preju- diced at all by EPA approval of the redesignation, we cannot say that there was a breach of the fiduciary duty to the Crow. IV Was the Cheyenne Tribe Support Document Insufficient under EPA Regulations Petitioner Westmoreland Resources argues extensively that the PSD Analysis Document prepared by the Tribe in support of the redesignation failed to comply with the regulations of the EPA. Westmoreland argues in par- ticular that the Analysis Document failed to consider the effect of the redesignation on energy development, that it failed to quantify the effect on air quality, that it gave inadequate consideration to the growth anticipated in the area, and that it failed to consider alternatives such as delay. No claim is made that these factors were not con- sidered at all, only that they were not “adequately con- sidered”. Thus, the standard of review on appeal is limited to whether the Tribe’s consideration of those factors was somehow “arbitrary or capricious.” Under that standard of review, the Tribe has met its obligations. Westmoreland relies heavily on various exacting re- quirements that have been imposed for the preparation of Environmental Impact Statements (EIS) under the 21a National Environmental Policy Act (NEPA). Actions under the Clean Air Act, however, are expressly ex- empted from the requirement of the preparation of an EIS. 15 U.S.C. § 793 (e) (1). Furthermore, the Clean Air Act contains a strong presumption in favor of the maintenance of clean air, and the nature of a decision which simply requires that the air quality be maintained at a certain level prevents any exact prediction of its consequ neces. The Tribe has considered the factors enumerated in EPA regulations, and its choice in favor of the certainty of clean air is a choice supported by the preferences embodied in the Clean Air Act. V (a) Did the EPA Violate the Clean Air Act by Dele- gating Redesignation Authority to the Indian Governing Bodies Certain petitioners argue that the delegation of au- thority to the Indian governing bodies was a violation of the Clean Air Act, and if it was not a violation then it was unconstitutional. The statutory question was found not ripe for review in Sierra Club v. EPA, 540 F.2d 1114, 1139 (D.C.Cir.1976), vacated and remanded 434 U.S. 809, 98 S.Ct. 40, 54 L.Ed.2d 66 (1977). Both the EPA and the Tribe argue that this court does not have jurisdiction to review the validity of the redesignation regulations either under the statute or the Constitution. First, they point to section 307(b)(1) of the 1977 Amendments, which requires that petitions for review of any nationally applicable regulations promulgated by the EPA Administrator be filed in the United States Court of Appeals for the District of Columbia. 42 U.S.C. § 7607(b) (1). But there is no indication in either the wording of the provision or its legislative history, that it applies to regulations promulgated before the enact- ment of the 1977 amendments. We think that review 22a of the pre-1977 regulations may be undertaken in ac- cordance with the provisions then in force. Moreover, the EPA recognizes this by its reliance upon the Sixth Circuit’s decision in Dayton Power & Light Co. v. EPA, 520 F.2d 703 (6th Cir. 1975). The EPA cites that case for the proposition that only the District of Columbia Circuit has jurisdiction to review the PSD regulations. This seriously misstates the holding. The Sixth Circuit ruled that review of the PSD regulations was governed by the second sentence of then 42 U.S.C. § 1857h-5(b) (1), which provides that review “may be filed only in the United States Court of Appeals for the appropriate cir- cuit.” 520 F.2d at 706. The Court then determined that, because of the potential for conflicts between the circuits and the need for uniform national laws, the District of Columbia Circuit was the appropriate circuit to review the PSD regulations, particularly in light of the fact that the regulations were promulgated in response to a decision by that court. 520 F.2d at 708. While the District of Columbia Circuit subsequently upheld the validity of the PSD regulations applicable to the states, it declined to decide the question of the Indian lands redesignation provisions on grounds of ripeness. Sierra Club v. EPA, 540 F.2d at 1114. That question is un- doubtedly now ripe for adjudication, the actual redes- ignation of an area by an Indian Tribe being the very issue in this case.* Under Dayton Power this Court must decide whether it is the appropriate Court of Ap- peals to review the PSD regulations applying to Indian Tribes. Judge Schroeder finds this entire case unripe as a general proposition. Contrary to the dissent’s assertions, however, this case became ripe at the time the redesignation, which is the only sub- ject of this case, was approved. The crucial issue before us is the correctness of the Agency’s behavior during that process of ap- proval. Once that process was complete, no additional events were necessary to enable this court to examine whether the agency prop- erly exc eised its authority under the law as it then existed. 23a It should be noted at the outset that, accepting the ripeness requirement imposed by the D.C. Circuit in Sierra Club, the redesignation of the Northern Cheyenne Reservation is the only context in which the pre-1977 regulations applicable to tribal redesignation may ever be challenged. As noted above, this reservation was the only area in the country actually redesignated under those regulations, and thus also the only Indian land so redesignated. So, there will be no opportunity for con- flict among the circuits, or for the wasting of judicial resources, the factors which were determinative in Dayton Power. Moreover, the only land that has been affected or that can be affected (since the regulations are no longer applicable) is located in this circuit. These facts suggest that this is the appropriate circuit to review this appeal. Petitioners’ argue that the PSD regulations delegating redesignation authority to Indian governing bodies vio- lated the Clean Air Act. Petitioners urge that section 107 (a) of the Clean Air Act, 42 U.S.C. § 7407 (a), dele- gated the responsibility to the states for assuring air quality within the entire geographic area comprising the State. Thus they argue that the EPA could not, con- sistent with the Clean Air Act, authorize Indian govern- ing bodies to control air quality standards in the Indian reservations. This line of reasoning must be rejected. The EPA instituted PSD regulations pursuant to Sierra Club v. Ruckelshaus, 344 F.Supp. 253 (D.D.C.1972), aff'd, 4 Envir. Rep. 1815 (D.C.Cir.), aff'd by an equally divided court sub nom. Fri v. Sierra Club, 412 U.S. 541, 93 S.Ct. 2770, 37 L.Ed.2d 140 (1973). One question was what procedures were appropriate for Indian tribal lands. The EPA was faced with the choice of granting the states the authority to redesignate Indian lands within their borders of exempting Indian lands from the PSD 24a regulations, or of allowing the Indian governing bodies the same authority as the states, namely the power to redesignate their lands. The Indian Tribes have traditionally been regarded as possessing important attributes of sovereignty, and the power of the states to regulate Indians and Indian lands has been sharply curtailed. See Bryan v. Itasca County, 426 U.S. 373, 392, 96 S.Ct. 2102, 2112, 48 L.Ed.2d 710 (1976); Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 270, 3 L.Ed.2d 251 (1959); Santa Rosa Band of Indians v. Kings County, 532 F.2d 655, 658 (9th Cir. 1975). As this Court stated in Santa Rosa Band of Indians, “we have little doubt that Congress assumed and intended that states had no power to regulate the Indian use or governance of the reservation provided, except as Congress chose to grant that power.” 532 F.2d at 658. And it is well recognized that “Indian tribes possess an inherent sovereignty except where it has been specifically taken away from them by treaty or act of Congress.” Ortiz-Barraza v. United States, 512 F.2d 1176, 1179 (9th Cir. 1975). Agency interpretations of federal statutes are entitled to great weight. Brubaker v. Morton, 500 F.2d 200 (9th Cir. 1974). “[T]he construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong.” Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969). Moreover, tribal sovereignty provides “a backdrop against which .. . applicable treaties and statutes must be read.” Me- Clanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 172, 93 S.Ct. 1257, 1263, 36 L.Ed.2d 129 (1973). Finally, the EPA regulations allowed this “self- redesignation” only for Indian reservations which had not been subjected to state jurisdiction. 40 C.F.R § 52.21 (e) (3) (v) (1975). 25a The conclusion can be drawn, therefore, that within the present context of reciprocal impact of air quality standards on land use, the states and Indian tribes occupying federal reservations stand on substantially equal footing. The effect of the regulations was to grant the Indian tribes the same degree of autonomy to deter- mine the quality of their air as was granted to the states. We cannot find compelling indications that the EPA’s interpretation of the Clean Air Act was wrong. Nor can we say that the Clean Air Act constitutes a clear expression of Congressional intent to subordinate the tribes to state decisionmaking. Furthermore, while the 1977 Clean Air Act Amend- ments may not be viewed as “ratifying” the EPA action, they do indicate Congress’s view that such Indian au- thority to redesignate their lands is appropriate. Indeed, in passing the 1977 amendments Congress was well aware that the only area that had seen substantial progress toward redesignation was an Indian Reservation. The Senate Report explicitly states: Under existing EPA regulations, Indian tribes are authorized to designate any of their lands as class I areas. If any such designations are approved by EPA prior to the enactment of these amendments such redesignation to class I status shall not be altered by the passage of these amendments. Such a request by the Northern Cheyenne Tribe is pending and may be approved before enactment. S.Rep.No.95-127, 95th Cong., Ist Sess. 35, reprinted in Senate Committee on Environment and Public Works, 3 A Legislative History of the Clean Air Act Amendments of 1977, at 1409 (1977). Was the Delegation of Redesignation Authority to the Indian Governing Bodies Unconstitutional Petitioners further contend that if the Clean Air Act is construed to delegate redesignation authority to the 26a Indian governing bodies, both the Act and the regulations would to that extent be unconstitutional. Petitioners’ basic argument is similar to the due process contention discussed below, namely that such a delegation gives the Indian tribes authority to affect land use by non-Indians outside the reservation area. This argument is seriously flawed. First, it hinges on the view that while Indian tribes possess attributes of sovereignty within the reser- vation, they are mere “private voluntary organizations” with respect to any effects outside the reservation. This seems to be an untenably grudging interpretation of the applicable Supreme Court precedents. On the specific issue of delegation of congressional legislative power, the Supreme Court has stated: This Court has recognized limits on the authority of Congress to delegate its legislative power. Pan- ama Refining Co. v. Ryan, 293 U.S. 388 [55 S.Ct. 241, 79 L.Ed. 446] (1935). Those limitations are, however, less stringent in cases where the entity exercising the delegated authority itself possesses independent authority over the subject matter. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-322 [57 S.Ct. 216, 220, 221, 81 L.Ed. 255] (1936). Thus it is an important aspect of this case that Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory, Worcester v. Georgia, 6 Pet. 515, 557 [8 L.Ed. 483] (1832); they are a “separate people” possessing “the power of regulat- ing their internal and social relations. United States v. Kagama, 118 U.S. 375, 381-382 [6 S.Ct. 1109, 1112-1113, 30 L.Ed. 228] (1886) ; McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 173 [93 S.Ct. 1257, 1262, 36 L.Ed.2d 164] (1973). United States v. Mazurie, 419 U.S. 544, 556-57, 95 S.Ct. 710, 717, 42 L.Ed.2d 706 (1975). Petitioners agree that 27a the Indian tribes possess “attributes or sovereignty” over their members and their territory, id., but would dis- tinguish the present case because the redesignation affects land use outside the reservation. Certainly the exercise of sovereignty by the Northern Cheyenne will have extraterritorial effect. But another element must be considered, namely the effect of the land use outside the reservation on ‘he reservation itself. This case in- volves the “dumping” of pollutants from land outside the reservation onto the reservation. Just as a tribe has the authority to prevent the entrance of non-members onto the reservation, Quechan Tribe of Indians v. Rowe, 531 F.2d 408, 410-11 (9th Cir. 1976), cf. Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 100 S.Ct. 2069, 2085-86, 65 L.Ed.2d 10 (question reserved whether state officials may enter res- ervation), a tribe may exercise control, in conjunction with the EPA, over the entrance of pollutants onto the reservation. We do not, however, decide whether the Indians would possess independent authority to maintain their air quality. “It is necessary only to state that the independent tribal authority is quite sufficient to protect Congress’ decision to vest in tribal councils this portion of its own authority .. .” United States v. Mazurie, 419 U.S. at 557, 95 S.Ct. at 717. We note further that while the Clean Air Act permits delegation of redesignation authority to the Indian tribes, the EPA maintains certain checks on the exercise of that authority. EPA regulations require approval of a proposed reclassification by the EPA Administrator; the tribes must prepare a report discussing the social, en- vironmental, and economic effects of the redesignation; a public hearing must be held on the Report; and con- sultation is required with states and tribes that border the reservation of the tribe proposing the redesignation. 28a VI The Fifth Amendment Takings Claim Petitioners also contend that the redesignation by the Northern Cheyenne Tribe constituted a taking without due process and without just compensation in violation of the fifth amendment of the United States Constitution. These claims are not ripe for adjudication. First, it is not yet established that strip mines are indeed subject to PSD permit procedures under the 1977 amendments. On the contrary, it appears at the very least that the EPA will have to engage in rule-making in order to subject the strip mines to those provisions, Alabama Power Co. v. Costle, 636 F.2d 323 (D.C. Cir. 1979), and the regulations recently proposed by EPA would not result in requiring PSD permits for strip mines. Since any future application of the PSD regula- tions to strip mines would be based on agency action other than the redesignation under the pre-1977 regula- tions, the 30-day time limit for appealing that redesigna- tion would not preclude the assertion of petitioners’ fifth amendment claims. Furthermore, there is no evidence in the record that even if full Class I restrictions are applied to petitioner’s coal mining properties that the petitioners will be unable to engage in any profitable coal mining whatsoever. Cf. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922). The mere regulation of the use of property, even if it results in the diminution of its value and profitability does not constitute a taking within the meaning of the fifth amendment. See gen- erally Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). Thus even assuming that strip mines are subject to the PSD permit procedure, the takings issue is not ripe for adjudication until the effect of the redesignation on the coal mining interests of the petitioners has been determined by the EPA. Petitioners’ claim that the redesignation violated due process because it was for the “private” benefit of the Cheyenne Tribe is without merit. Not only is it well recognized that the Indian tribes possess attributes of sovereignty in many respects comparable to those of the states, United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975), but Congress has recognized that clean air, wherever located, is in the public interest. To the extent that the redesignation limits polluting ac- tivities outside the area of the Northern Cheyenne reser- vation, a benefit is also conferred upon people living in those areas. It is noteworthy in this respect that the affected states, Wyoming and Montana, have chosen not to challenge the EPA’s action. Petitioners’ argument that the Indians have been allowed to regulate the use of property outside the reservation area, in violation of due process requirements, is also without merit insofar as it assumes an inherent right on their part to deposit pollutants on the property of the Indians. It was Con- gress and the EPA, not the Indian tribes, that decided in the first instance that the interest in clean air gen- erally was superior to that interest represented by the polluting activity. VII The Tenth Amendment Claim Petitioners also claim that allowing the Indians to redesignate their lands and, in so doing, to affect the use to which lands outside the reservation may be put is a violation of the tenth amendment. While the standing of petitioners to assert this claim, insofar as the tenth amendment is designed to protect the interest of the states qua states, may be seriously questioned, this claim is so patently without merit that the standing question can be left for another day. (See Note, Assuming Juris- 30a diction Arguendo: Rationale and Limits of Hypothetical Jurisdiction, 127 U. Pa. L. Rev. 712, 733-34 (1979) ). Basically, petitioners argue that allowing redesignation by Indian tribes to have extraterritorial effects uncon- stitutionally limits the state’s interest in planning and enforcing land use policies. This view implies that Con- gress is without authority to regulate directly the pollut- ing activities of private parties. Were the court to adopt the view urged by petitioners, it is hard to see what fed- eral activity under the commerce clause would be per- mitted. Here, the states have not been required to take any affirmative action, Cf. Brown v. EPA, 521 F.2d 827 (9th Cir. 1975), vacated and remanded, 431 U.S. 99, 97 S. Ct. 1635, 52 L.Ed.2d 166 (1977), nor has the state’s ability to regulate its own governmental affairs or allocate its own resources been affected. Cf. National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). The power to allow private citizens to engage in strip mining is hardly one of those “functions essential to separate and independent ex- istence.” 426 U.S. at 845, 96 S.Ct. at 2471. Indeed, the Supreme Court in National League of Cities drew an express distinction between regulations aimed at private enterprises and those aimed at states: It is one thing to recognize the authority of Congress to enact laws regulating individual businesses nec- essarily subject to the dual sovereignty of the gov- ernment of the Nation and of the State in which they reside. It is quite another to uphold a similar exercise of congressional authority directed, not to private citizens, but to the States as States. 426 U.S. at 845, 96 S.Ct. at 2471. Other Claims Petitioner Westmoreland Resources additionally ap- peals the EPA’s denial of its petition to vacate EPA 31a approval of the redesignation and to remand the re- designation question to the Northern Cheyenne for re- consideration. Westmoreland argues that the EPA’s re- fusal to vacate was an abuse of its discretion because the original approval was based upon an incorrect finding that the redesignation proposal would not affect coal mining. This is essentially the same argument we re- jected above. Because the EPA’s action in approving the redesignation proposal was not arbitrary and capricious, and because petitioner fails to demonstrate that the original approval was based on a clearly incorrect find- ing, the Administrator’s denial of Westmoreland’s peti- tion cannot be found an abuse of discretion. The administrative process cannot provide for the constant reopening of the record to consider new facts, Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 555, 98 S.Ct. 1197, 1217, 55 L.Ed.2d 466 (1978), and it is for the agency, not this court to deter- mine when such reopening is appropriate, unless the failure to reconsider can be characterized an abuse of discretion. See City of Santa Rosa v. EPA, 534 F.2d 150, 153 (9th Cir. 1976). Moreover Westmoreland can request the Northern Cheyenne to apply for a further reclassification back to Class II standards in light of the adverse effect of the 1977 Amendments on strip mining, if there is such an effect. We therefore affirm the EPA’s denial of Westmoreland’s petition to vacate. Conclusion For the reasons given above we hold that the EPA’s action in approving the Northern Cheyenne Tribe’s re- designation of its reservation from Class II to Class I air quality standards was not arbitrary or capricious. We sim larly reject the numerous other arguments which Petitioners contend require us to overturn the redesigna- tion. The Agency’s action in this case is, therefore, affirmed. 32a SCHROEDER, Cireuit Judge, dissenting: I respectfully dissent from the majority’s decision to decide this case. The majority opinion covers a far ranging and boulder strewn field of issues. It decides, for example, that the EPA acted properly when it dispensed with require- ments of the Administrative Procedure Act, 5 U.S.C. § 553(d) (3) in order to avoid having to consider the redesignation under the 1977 Clean Air Act Amend- ments which were then awaiting the President’s signa- ture. That conclusion seems dubious at best. An important reason advanced by the majority for reaching that conclusion is that the EPA has not yet promulgated regulations under the amended act which require strip mines to have PSD permits, and the re- designation thus has not had any measurable adverse impact upon the petitioners in this case, all of whom represent strip mining interests. That reason is precisely the reason I believe the Court should reach no decision in this case and dismiss on the ground that the case is not ripe. As the Supreme Court has summarized: Without undertaking to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling them- selves in abstract disagreements over administrative policies, and also to protect the agencies from judi- cial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court con- sideration. 33a Abbott Laboratories v. Gardner, 387 U.S. 136, 148-149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967) (footnote omitted). See also Toilet Goods Association v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967) in which the Court declined to review a final agency action stating “this is not a situation in which primary conduct is affected... .” Id. at 165, 87 S.Ct. at 1525. One leading authority has compiled a catalog of prob- lems which courts avoid when they decide that a case is not ripe. For example, issues presented may prove ir- relevant to the actual conflict which develops; sensitive constitutional issues may be better avoided; there may be dangers of intruding into administrative programs before agency views have crystalized; premature deci- sions may lead to ill-advised decisions. 13 Wright, Miller & Cooper, Federal Practice and Procedure § 3532 (1975). This case illustrates all of those problems. This Court has recently held that a case was not ripe for decision when a potential to regulate had never been exercised, when the challenger had not been denied any privilege and had never been prosecuted, and when there was real doubt as to whether there would ever be an assertion of power. International Society for Krishna Consciousness v. Kleppe, 592 F.2d 529 (9th Cir. 1979). In the environmental field, the Seventh Circuit has held that a challenge to an EPA designation of “air quality maintenance areas” was not ripe for review where the challengers were “not required to do anything nor to refrain from doing anything” as a result of the des- ignation. Bethlehem Steel v. EPA, 536 F.2d 156, 162 (7th Cir. 1976). The D.C. Circuit cited that case when it also rejected, on ripeness grounds, a challenge to EPA action. Diamond Shamrock Corp. v. Costle, 580 F.2d 670, 673 n.1 (D.C. Cir. 1978). See also the exten- sive discussion of ripeness which this Court has approved in American Petroleum Institute v. Knecht, 456 F.Supp. 34a 889 (D.C. Cal. 1978), affd 609 F.2d 1306 (9th Cir. 1979), stressing the importance of considering the extent of the hardship on the parties if a case is not decided. In both Bethlehem Steel and Diamond, a claim of eco- nomic harm in the nature of long range planning needs was asserted as necessitating a prompt decision. The Courts both rejected such claims as insufficient for ripe- ness purposes. The claim of harm here is even more attenuated. This Court requested supplemental briefs in this case specifically directed to the question of ripeness. In those briefs, the Northern Cheyenne Tribe takes the position that the case is not ripe because there is no threatened or existing harm to strip mining interests as a result of the challenged designation. The government and the petitioners agree that strip mines are not now subject to PSD permit requirements and it is unlikely that they ever will be. The only claim of possible harm they present is a contention that fugitive emissions of the strip mines would be considered in a general assessment of Class I air quality deterioration, and that violation of those overall standards might trigger increased state controls under the State Implementation Plan. The nature of such controls or their effect on these petitioners cannot be known at this time. No such controls are asserted to be imminent. The State of Montana is not a party here, and the existence of an absent party whose presence might affect the resolution of issues is still another factor militating against deciding this case. If we further consider that the authorization of appro- priations for the Clean Air Act itself will expire in 1981, 42 U.S.C. § 7404(c), thus necessitating a reconsideration of the Act in its entirety by Congress this year, the unnecessary character of today’s decision becomes almost palpable. See generally the Clean Air Act Debate, 126 Cong. Rec. $14792 (daily ed. Nov. 21, 1980). 35a Petitioners have expressed fear that the provisions of the Act, requiring a petition for review to be filed within 60 days after final agency action, would leave them without the possibility of future recourse to the courts. 42 U.S.C. § 7607 (b) (1) and (2). However, that section does not ring down a final curtain on review of agency action after 60 days. The section provides: Any petition for review under this subsection shall be filed within sixty days from the date notice of such promulgation, approval, or action appears in the Federal Register, except that if such petition is based solely on grounds arising after such sixtieth day, then any petition for review under this subsec- tion shall be filed within sixty days after such grounds arise. 42 U.S.C. § 7607(b) (1). I would construe this clause as permitting the peti- tioners to seek review in this Court when and if future events establish grounds to create a meaningful con- troversy. 36a APPENDIX B EPA Decision to Approve Redesignation 42 Fed. Reg. 40,695 (1977) Title 40—Protection of Environment CHAPTER I—ENVIRONMENTAL PROTECTION AGENCY SUBCHAPTER C—AIR PROGRAMS ([FRL 775-7] PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS Montana: Redesignation of Northern Cheyenne Indian Reservation for Prevention of Significant Deterioration AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: The purpose of this action is to approve the March 7, 1977, request of the Northern Cheyenne Tribal Council to redesignate the Northern Cheyenne Indian Reservation to Class I under EPA’s regulations for prevention of significant air quality deterioration (PSD). Class I applies to areas in which practically any charge in air quality would be considered significant. On April 29, 1977, EPA published a notice announcing EPA’s tentative decision to approve the proposed re- designation and soliciting written public comments. Neither the comments nor EPA’s detailed review sur- faced any deficiencies in the proposal. Thus, EPA is approving the redesignation of the reservation to Class I as a revision to the Montana implementation plan. EFFECTIVE DATE: August 5, 1977. 37a ADDRESSES: Copies of the Northern Cheyenne analysis and EPA support document are available at: U.S. Envi- ronmental Protection Agency, Region VIII, Office of Public Affairs, Suite 900, 1860 Lincoln Street, Denver, Colorado 80295. U.S. Environmental Protection Agency, Room 2922, 401 M Street SW., Washington, D.C. 20460. FOR FURTHER INFORMATION CONTACT: Louis W. Johnson, Chief, Planning & Operations Section, Air Programs Branch, U.S. Environmental Protection Agency, Region VIII, 1860 Lincoln Street, Denver, Colorado 80295. 303-837-3711. SUPPLEMENTARY INFORMATION: On December 5, 1974 (39 FR 42510), EPA promulgated regulations for the prevention of significant air quality deterioration (PSD). The intent of these regulations is to prevent deterioration of existing air quality, particularly in areas currently considered to be pristine. The regulations pro- vide for three basic classifications applicable to all lands of the United States. Associated with each classification are increments which represent the increase in air pol- lutant concentration that would be considered significant. Class I applies to areas in which practically any change in air quality would be considered significant; Class II applies to areas in which deterioration normally accom- panying moderate well-controlled growth would be con- sidered insignificant; and Class III applies to those areas in which deterioration up to the national standard would be considered insignificant. Under the regulations, all areas of the country were initially designated Class II. The regulations allow States, Federal Land Managers, and Indian Governing Bodies to reclassify areas under their jurisdiction to accommodate the social, economic, and environmental needs and the desires of the local population. 38a The PSD regulation is implemented through a precon- struction review program affecting nineteen categories of major sources. Such sources cannot receive permission to construct if their emissions, together with other emis- sion changes since January 1, 1975, would violate the ap- plicable increment. On March 7, 1977, EPA received an official proposal from the Northern Cheyenne Tribal Council to redesig- nate the Northern Cheyenne Indian Reservation to Class I. The request was accompanied by an analysis of the reasons for the proposed redesignation and the associated social, economic, and environmental impacts as well as the regional and national impacts of the proposed redesigna- tion. The Northern Cheyenne’s primary reasons for propos- ing redesignation were stated as follows: A desire to preserve the lifestyle of the reservation and the existing culture without disruption caused by further air quality deterioration. Adverse effects on human health caused by further degradation of air quality. The Northern Cheyenne cite the existing high rate of respiratory illness among resi- dents of the reservation. Impacts of further air quality degradation on the growth of vegetation, especially the ponderosa pine forest. Potential impacts on visibility of further air quality degradation. On April 29, 1977 (42 FR 21819), EPA published a notice in the FEDERAL REGISTER announcing receipt of the proposal and soliciting public comment on the request with respect to the review criteria set forth in 40 CFR 52.21. On June 10, 1977 (42 FR 29937), in response to requests by interested parties, EPA extended that public comment period until June 30, 1977. 39a The April 29, 1977, notice presented a brief discussion of the requirements for redesignation and the efforts of the Northern Cheyenne to comply with those require- ments. That discussion raised one potential cause for dis- approval of the request—the requirement that an Indian Governing Body propose the redesignation with the approval of the Secretary of Interior. As indicated in the notice, EPA had received a communication from an offi- cial of the Bureau of Indian Affairs. EPA was uncertain of the authority of the BIA official and requested a clari- fication from the Office of the Secretary of Interior. The Secretary’s office responded that the BIA official had been delegated authority to give Secretarial approval in such matters. Thus, EPA has determined that this require- ment was met by the Northern Cheyenne Tribal Council. COMMENTS There were 62 comments submitted to EPA. While it is not practical to discuss every comment here, the major points are discussed below. The comments are discussed in more detail in the document entitled “EPA Support Document for Northern Cheyenne Redesignation Re- quest,” referenced at the end of this preamble. MORE PUBLIC INPUT Some argued that EPA should hold extensive public hearings and solicit additional public comment before taking final approval action on the redesignation. The PSD regulation, which has been upheld in “Sierra Club v. EPA.” 540 F.2d 1114 (D.C. Cir. 1976),' contains pro- The Supreme Court agreed to review this decision on April 4, 1977. EPA strongly supports the validity of the PSD regulations and will fully implement and enforce them unless EPA's position is overturned in the Supreme Court. Several other U.S. Courts of Appeal have agreed with the D.C. Circuit; none have disagreed. Moreover, Congress has on several occasions rejected attempts to delete PSD authority from the Clean Air Act. 40a cedures providing full opportunity for public hearings and comment. Such procedures have been complied with in this case. The Northern Cheyenne held a public hearing on Janu- ary 17, 1977, in Lame Deer, Montana, which is accessible to people living in the area affected by the redesignation. They also held the record open following the hearing to permit further public comments. There was a great amount of interest and comments (both pro and con) were submitted and integrated into the Northern Chey- enne’s final analysis. EPA also provided its own period for public comment on the Northern Cheyenne proposal and even extended the period an additional 30 days. Because the regulation limits EPA’s scope of review on this proposal to deter- mining whether procedural requirements were complied with and whether the Tribe arbitrarily or capriciously disregarded certain factors, nothing would be gained by further prolonging the comment period. In fact, doing so would be unfair to the Northern Cheyenne, who have completed the lengthy task of complying with all of the redesignation procedures and are now entitled to a resolu- tion of their request. MONTANA LAWS ADEQUATE There were several comments that the Montana Sitting Act and/or the Montana environmental rules are adequate to protect the environment. Montana’s rules and regula- tions contain no provisions for prevention of significant deterioration. Therefore, in December 1974, EPA, pur- suant to a court decision, disapproved the State’s imple- mentation plan and promulgated the PSD regulations. As noted above, these regulations have been upheld by the D.C. Circuit Court of Appeals. 4la EXISTING LIFE STYLE ALTERED Many expressed concern that farming activities on or near the reservation would be adversely affected or that the redesignation could hinder the ways of life of people holding land. Another individual stated that he could not understand why Class I designation was needed in an area not currently experiencing air pollution problems. The intent of the PSD regulations is to maintain as nearly as practicable the existing air quality in desig- nated areas where local priorities so require. As such, they are effective in clean air areas—not in areas that are violating ambient standards. They are implemented through a new source review program to restrict the emissions from certain major industrial sources if they would cause significant air quality degradation. The regu- lation would have no effect upon the operation of existing facilities or upon minor sources. Since farming is not a major source of industrial pollution, farming activities would also not be affected. Thus, the PSD regulation and the redesignation would not inhibit farming activities or alter anyone’s existing way of life. On the contrary, Class I designation would more effectively maintain the existing way of life than any other designation. EIS REQUIRED BY NEPA Some argued that EPA must comply with the require- ments of the National Environmental Policy Act (NEPA) prior to any decision on the Northern Cheyenne redesignation request. Congress, however, has made its intentions abundantly clear in this regard: “No action taken under the Clean Air Act shall be deemed a major Federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969.” 15 U.S. C. A. 793(c) (1). In any event, the Northern Cheyenne analysis of the social, environmental and economic effects of the redesig- 42a nation, the extensive public comments both to the tribe and EPA, and the agency’s own evaluation of all this in- formation, adequately accomplish the goals and purposes of NEPA. CoLsTRiP 3 & 4 AFFECTED Several comments expressed concern that a Class I designation would prevent the construction of electric power plant units known as Colstrip 3 & 4, which are planned for a site near the Northern Cheyenne reserva- tion. The commentors argued that the result would be a shortage of power in Montana and the Pacific Northwest. While dispersion modeling presented in the analysis and performed by EPA indicates that the units, as proposed, would violate the Class I increments for SO, on the reser- vation, the rédesignation would not necessarily prevent their construction. EPA’s analysis indicates that approxi- mately 90 percent capture of the SO, emissions from the new units would reduce emissions sufficiently to avoid violation of the increment. Therefore, redesignation of the reservation should require additional control efforts which are achievable by currently available control tech- nology for the proposed new units. REVERSIBILITY One individual expressed doubts that the Class I desig- nation could be reversed. The Northern Cheyenne could, if their priorities were to change in the future, seek re- designation back to Class II or Class III through the same procedures implemented in their effort to reclassify to Class I. However, as was pointed out in the Northern Cheyenne’s analysis, Class II and Class III designations are not nearly so reversible. Once the air quality on the reservation is deteriorated, it would be extremely difficult to renew it to its original quality. 43a NATIONAL IMPACTS Many argued that the redesignation would have signifi- cant impacts on national interests, specifically by restrict- ing energy production. As discussed in EPA’s proposal of April 29, there are two major concerns related to energy production; (a) strip mining of coal, and (b) conversion of coal to electric power or gas. Since strip mines are not subject to the preconstruction review program of the PSD regulation, they would not be directly affected by a redesignation. On the other hand, coal conversion facili- ties would be affected. The Northern Cheyenne analyzed the impacts of various development scenarios and reported that large facilities located within ten to thirty miles of the reservation border might violate the Class I incre- ment. Therefore, the planning of such facilities would have to be done more carefully with regard to location and, pollution control. However, the redesignation would not prevent the construction of new facilities in the general area. Given the relatively small area of the reservation (700 square miles), the redesignation should not signifi- cantly affect national energy interests. REGIONAL IMPACTS There were comments that the potential restrictions upon energy development may affect regional interests. The potential regional impacts primarily involve energy development on the Crow Reservation, which is adjacent to the western border of the Northern Cheyenne Reser- vation. EPA received comments from eleven members of the Crow Tribe and from the law offices of Lynaugh and Fitzgerald, which serves as designated legal counsel for the Crow Tribe. In discussing comments related to the potential impacts of the redesignation upon the Crow Tribe it should be noted that the Crow Tribal Constitution and By-laws pro- vide that only the Crow Tribal Council which consists of 44a all voting members of the Crow Tribe, can determine a Tribal position or empower a representative to speak for the Tribe on a matter such as redesignation. There has been no indication to date that the Tribal Council has developed a position on the Northern Cheyenne redesig- nation proposal or empowered anyone to represent the Council in this matter. While some tribal members and their legal counsel have expressed opposition to the re- designation because of its potential impact upon develop- ment of coal reserves, several members of the Crow Tribe have also expressed support for the redesignation. As discussed previously, coal mining in the eastern portion of the Crow Reservation would be under no addi- tional restriction as a result of this reclassification. How- ever, coal conversion facilities could be restricted depend- ing upon size, spacing, and control technology. The exact nature of the restriction is difficult to determine since final development plans have not been made and the only proposed development to date is for coal mines producing coal for export. APPROVAL Section 52.21(c) (3) (vi) states that the Administrator will approve a request for redesignation by an Indian Governing Body unless (1) the procedural requirements previously discussed have not been followed; or (2) the Indian Governing Body has arbitrarily and capriciously disregarded the considerations of growth, environmental, and economic effects, or national or regional interests. Both the Northern Cheyenne analysis and the EPA sup- port document show that the Northern Cheyenne have fully complied with all of the procedural requirements, and that the Northern Cheyenne have considered all of the relevant factors and have not arbitrarily and caprici- ously disregarded them. EPA therefore approves the Northern Cheyenne pro- posal and herein promulgates a revision to the Montana 45a State Implementation Plan which redesignates the Northern Cheyenne Indian Reservation as Class I. Addi- tional support for this approval can be found in the docu- ment entitled “EPA Support Document for Northern Cheyenne Redesignation Request,” which is part of this rulemaking action. This document is available for in- spection and copying at the addresses listed in the intro- duction to this notice. This action is effective immediately. There is good cause for making the action immediately effective since EPA has been holding in abeyance a preconstruction per- mit request pending final action on the redesignation. Furthermore, no useful purpose would be served by deferring the effectiveness of this action for thirty days because new applications for construction would have to be evaluated in light of this action in any event. (Sees. 110, 301, Clean Air Act, as amended (42 U.S.C. 1857c-"_ 1857g).) Dated: August 5, 1977. DouGLas M. CosrLx, Administrator. Part 52 of Chapter I, Title 40 of the Code of Federal Regulations is amended as follows: Subpart BB—Montana In § 52.1382, paragraph (c) is added as follows: § 52.1382 Significant deterioration of air quality. (e) () Except as set forth in this paragraph, all areas of Montana are designated Class II. (2) The Northern Cheyenne Indian Reservation is des- ignated Class I. [FR Doc. 77-23111 Filed 8-5-77 ; 5:16 pm] 46a APPENDIX C Clean Air Act as Amended 42 U.S.C. §§ 7470-7479 (Supp. III 1979) provide, in pertinent part: PART C—PREVENTION OF SIGNIFICANT DETERIORATION OF AIR QUALITY SUBPART I—CLEAN AIR § 7470. Congressional declaration of purpose The purposes of this part are as follows: (1) to protect public health and welfare from any actual or potential adverse effect which in the Ad- ministrator’s judgment may reasonably be antici- pate to occur from air pollution or from exposures to pollutants in other media, which pollutants origi- nate as emissions to the ambient air), not with- standing attainment and maintenance of all national ambient air quality standards; (2) to preserve, protect, and enhance the air quality in national parks, national wilderness areas, national monuments, national seashores, and other areas of special national or regional natural, recrea- tional, scenic, or historic value; (3) to insure that economic growth will occur in a manner consistent with the preservation of exist- ing clean air resources; (4) to assure that emissions from any source in any State will not interfere with any portion of the applicable implementation plan to prevent significant deterioration of air quality for any other State; and (5) to assure that any decision to permit in- creased air pollution in any area to which this sec- 1 So in original. Probably should read “anticipated”. 2So in original. Section was enacted without an opening parenthesis. 47a tion applies is made only after careful evaluation of all the consequences of such a decision and after ade- quate procedural opportunities for informed public participation in the decisionmaking process. (July 14, 1955, ch. 360, title I, § 160, as added Aug. 7, 1977, Pub. L. 95-95, title I, § 127(a), 91 Stat. 731.) § 7471. Plan requirements In accordance with the policy of section 7401(b) (1) of this title, each applicable implementation plan shall contain emission limitations and such other measures as may be necessary, as determined under regulations promulgated under this part, to prevent significant de- terioration of air quality in each region (or portion there- of) identified pursuant to section 7407(d) (1) (D) or (E) of this title. (July 14, 1955, ch. 360, title I, § 161, as added Aug. 7, 1977, Pub. L. 95-95, title I, §127(a), 91 Stat. 731.) § 7472. Initial classifications. (a) Areas designated as class I Upon the enactment of this part, all— (1) international parks, (2) national wilderness areas which exceed 5,000 acres in size. (3) national memorial parks which exceed 5,000 acres in size, and (4) national parks which exceed six thousand acres in size, and which are in existence on August 7, 1977, shall be class I areas and may not be redesignated. All areas which were redesignated as class I under regulations promulgated before August 7, 1977, shall be class I areas which may be redesignated as provided in this part. (b) Areas designated as class II All areas in such State identified pursuant to section 7407 (d) (1) (D) or (E) of this title which are not estab- 48a lished as class I under subsection (a) of this section shall be class II areas unless redesignated under section 7474 of this title. (July 14, 1955, ch. 360, title I, § 162, as added Aug. 7, 1977, Pub. L. 95-95, title I, § 127(a), 91 Stat. 731, and amended Nov. 16, 1977, Pub. L. 95-190. § 14(a) (40), 91 Stat. 1401.) § 7473. Increments and ceilings (a) Sulfur oxide and particulate matter; requirement that maximum allowable increases and maximum allowable concentrations not be exceeded In the case of sulfur oxide and particulate matter, each applicable implementation plan shall contain measures as- suring that maximum allowable increases over baseline concentrations of, and maximum allowable concentrations of, such pollutant shall not be exceeded. In the case of any maximum allowable increase (except an allowable increase specified under section 7475 (d) (2) (C) (iv) of this title) for a pollutant based on concentrations per- mitted under national ambient air quality standards for any period other than an annual period, such regulations shall permit such maximum allowable increase to be ex- ceeded during one such period per year. (b) Maximum allowable increases in concentrations over baseline concentrations (1) For any class I area, the maximum allowable increase in concentrations of sulfur dioxide and particu- late matter over the baseline concentration of such pollu- tants shall not exceed the following amounts: Maximum allowable increase (in Pollutant micrograms per cubic meter) Particulate matter: Annual geometric mean pe tes 5 Twenty-four-hour maximum 8 10 Sulfur dioxide: Annual arithmetic mean 2 Twenty-four hour maximum eit 5 Three-hour maximum 25 49a (2) For any class II area, the maximum allowable increase in concentrations of sulfur dioxide and particu- late matter over the baseline concentration o [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_0159%3A0. Public record. Not legal advice.