Petition for Writ of Certiorari — Michigan v. Environmental Protection Agency

Supreme Court of the United States

STATE OF MICHIGAN, et ai.,

Petitioners,

Vv.

U.S. ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

JENNIFER M. GRANHOLM HENRY V. NICKEL

ATTORNEY GENERAL (Counsel of Record)

THOMAS L. CASEY DAVID S. HARLOW

SOLICITOR GENERAL HUNTON & WILLIAMS

JOHN FORDELL LEONE 1900 K Street, N.W.

ASSISTANT ATTORNEY GENERAL Washington, D.C. 20006

300 S. Washington Square (202) 955-1500

Suite 315 Counsel for Salt River

Lansing, Michigan 48913

(517) 373-7540

Counsel for the State of

Michigan

November 9, 2000

Project Agricultural

Improvement and Power

District and Public Service

Company of New Mexico

[Additional Counsel Listed Inside]

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 - WASHINGTON, D.C. 20001

JOHN B. WELDON, JR.

KAREN S. GAYLORD

SALMON, LEWIS & WELDON, P.L.C.

4444 North 32nd Street

Phoenix, Arizona 85018

(602) 801-9060

Counsel for Salt River Project

Agricultural Improvement and

Power District

BRIAN J. RENAUD

HOWARD & HOWARD ATTORNEYS, P.C.

Pinehurst Office Center

39400 Woodward Avenue, Suite 101

Bloomfield Hills, Michigan 48304

(248) 645-1483

Counsel for the National Association of

Manufacturers, the Michigan Chemical

Council, the Timber Producers Association

of Michigan and Wisconsin, Inc., and the

Rhinelander Area Chamber of Commerce, Inc.

QUESTIONS PRESENTED

The D.C. Circuit held that the U.S. Environmental

Protection Agency (EPA) reasonably defined the term

“reservation” in the Clean Air Act (CAA) as including lands,

located outside the boundaries of formal reservations, which

are taken into trust for tribes pursuant to the Indian

Reorganization Act (IRA). As a consequence, tribes are now

authorized to redesignate under CAA § 164(c) such current

and future trust lands to a more stringent air quality

classification, an action that can override the implementation

by a state of its own land use development policies, preclude

construction of new industrial facilities, and impose costly

restrictions on the operation of existing facilities in state

lands bordering the redesignated tribal lands. The court also

held that the CAA expressly delegates to tribes authority to

adopt air programs for lands within reservations that are

owned in fee by non-Indians and that were subject to state air

quality regulation prior to the 1990 Amendments to the CAA.

The questions presented are:

l. Whether EPA has the discretion to interpret the CAA

in a manner that expands the lands tribes may redesignate to

include IRA trust lands and other lands located outside of

reservations established by treaty, Executive Order, or Act of

Congress.

ya Whether the CAA can be construed as divesting the

states of their sovereign authority by delegating authority to

tribes over non-Indian fee lands previously within the

sovereign jurisdiction of a state, when the CAA expressly

provides that no provision therein precludes or denies a

state's authority to adopt and enforce standards for lands

within its territorial boundaries.

eS ee ee

il

PARTIES TO THE PROCEEDINGS

l. The following were petitioners in the

consolidated proceeding, the judgment in which review is

sought, and who join in this petition.

In No. 98-1203, the National Association of

Manufacturers, the Michigan Chemical Council, the Timber

Producers Association of Michigan and Wisconsin, Inc., and

the Rhinelander Area Chamber of Commerce, Inc.

(hereinafter, the National Association of Manufacturers, ef

al).

In No. 98-1207, Salt River Project Agricultural

Improvement and Power District (in its capacity as operating

agent for the Navajo Generating Station), and Public Service

Company of New Mexico.

p The following were petitioners in the

consolidated proceeding, the judgment in which review is

sought, and who do not join in this petition.

In No. 98-1196, Arizona Public Service Company.

In No. 98-1203, the American Forest & Paper

Association.

In No. 98-1206, the National Mining Association.

In No. 98-1207, Nevada Power Company, and

Tucson Electric Power Company.

In No. 98-1208, Oklahoma Gas & Electric Company.

> The following was respondent in the

consolidated proceeding, the judgment in which review is

sought.

United States Environmental Protection Agency.

4. The following were intervenors in the

consolidated proceeding, the judgment in which review is

sought, and who join in this petition.

The State of Michigan.

5. The following were intervenors in the

consolidated proceeding, the judgment in which review is

sought, and who do not join in this petition.

Central and South West Services, Inc.

Gila River Indian Community.

Navajo Nation.

Salt River Pima-Maricopa Indian Community.

Shoshone-Bannock Tribes.

iV

DISCLOSURE STATEMENT

No parent corporation or publicly held company owns

10% or more of either Salt River Project Agricultural

Improvement and Power District or Public Service Company

of New Mexico. The National Association of Manufacturers,

et al., are each a trade association and none of these entities is

a parent, subsidiary, or affiliate of any corporation or other

entity which has issued shares or debt securities to the public.

TABLE OF CONTENTS

Page

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POUUIOS OP GO FICO OI Rio isciscsicitiesssctssssncnsscareincevessecrnonazensten il

III RENNIN sins scescsisenntsancnnncneniantesbeinedinangiormlnsinnne iv

Table of Authorities.......... ssiidelilaetdlplglaniidasaasanadacaateniaieianne Vii

NS NUN oisisiscniscsnnts discarsasocienconsasintamsuamanedemaeennsaien l

init nistecen ich nlcdshecnccoasansacnantomiadabaeatniianiens l

Statutory and Regulatory Provisions

Ue eT I aise iacksoiinetha is cas taaatncavpsnduccmpamesomesenrenne l

I iaacsahinecstsncasinssbecdinsediadaninsrmmioamaucncul 2

Reasons for Granting the Petition ..............cccccseesseeseeeeeeees 12

I. Certiorari Should Be Granted to Determine

Whether EPA Has Discretion to Construe the

CAA to Give Tribes Authority to Expand the

Lands Over Which They May Exercise

Redesignation Powers With Extraterritorial

Effect, and to Resolve a Split in the Circuits

PRIN Hee II a sssctcnnscccassarsninnisecncsunten senusemmaanians 4

I]. This Court Should Resolve Whether the CAA

Can Be Construed as Delegating to Tribes

Authority to Regulate Air Resources on Non-

Indian Fee Lands, Given That the CAA Expressly

Precludes States Being Divested of Authority

Over Lands Otherwise Within Their Jurisdiction .......... 22

| PNT RN face I TN ae ee nM aR ue Ws 26

Appendix

A.

B.

Arizona Public Service Co. et al. v. US

Environmental Protection Agency, 211 F.3d 1280

(D.C. 2000)

Tribal Authority Rule, 63 Fed. Reg. 7254, ef seq

(February 12, 1998)

Order (Denying Petition for Rehearing)

. Order (Denying Petition for Rehearing en banc)

Judgment

Relevant Statutory Provisions

——

vii

TABLE OF AUTHORITIES

CASES Page

Arizona v. U.S. Environmental Protection

Agency, 151 F.3d 1205 (9th Cir. 1998),

as amended, 170 F.3d 870 (1999) ..............cccccceeeeeeeeeeeees 21

Bugenig v. Hoopa Valley Tribe, No. 99-15654,

2000 WL 1459373 (9th Cir. (Cal.) Oct. 3, 2000).....24, 25

Chevron U.S.A. v. Natural Resources

Defense Council, 467 U.S. 834 (1984).............ccec0+ 16, 17

Connecticut v. Blumenthal, 228 F.3d 82

(Qrnd Cir. 2000) .........ccecsscrecsescecsccscseccecsscssssacsnsssssssssonccsse 5

DeCoteau v. District County Court for Tenth

Judicial Dist., 420 U.S. 425 (1975)...............cccsccceseeeeeeneees 3

Edward J. Debartolo Corp. v. Florida Gulf

Coast Building & Construction Trades Council,

ASS U.S. S6B (19GB) ....0ccccccsccerccsesscrerccseccscccssccssesssesecssces 19

Kerr-McGee Chemical Corp. v. U.S. Department of

Interior, 709 F.2d 597 (9th Cir. 1983) ............ccccccceeeeeees 14

McClanahan v. State Tax Comm'n of Arizona,

BLD US. 166 CIDTS) ..crcecccrcncesccrccsesecccnncsesesccccccccssecccescnssen 4

Montana v. U.S. , 450 U.S. 544 (1981) ...........:ccccseeeenenes 4,10

Oklahoma Tax Comm'n v. Citizen Band Potawatomi

Indian Tribe of Oklahoma, 498 U.S 505 (1991)}...... 11,19

Vill

Oklahoma Tax Comm'n v. Sac and Fox Nation,

ee i: AN Eo iccnsicesenasonetanpbiccasadavccenshatdbciensteoutiione 19

Sioux Tribe of Indians v. U.S., 94 Ct.Cl. 150

CESS D, Gr Bae Eos FEF CWE Peemscercssssacscesnesantnsssnesetose 7

South Dakota v. U.S. Dep't of Interior,

69 F.3d 878 (8th Cir. 1995), vacated 519 U.S.

aN ca cicineatltnledsesncdisicaaacsibenialtbes Aletdciaitghadbilsiaadipioiet 5,.16

EA OE Re Ae Gs PO i aiiceseciccicesisctnsananccennninmnaes 19

Yankton Sioux Tribe v. Gaffey,

BE ee I i tciesdtnedescsccisecinanennsicnnnnnsen 3

STATUTES

ee a PPP astetsetacnnaeecea onanenianisipideeaailaasaninenneen 3,5, 10

The Clean Air Act, 42 U.S.C. §§ 7401 ef seq.

CAA § 110(a)(2)(E), 42 U.S.C. § 7410(a)(2)(E) ....... 23

CAA § 110(c), 42 U.S.C. § 7410(c).... eee 23

CAA § 110(0),

Oe Res iriccsasintindanias 9, 11, 12, 25, 26

CAA & 116, 42 UBC. § F416 .nncccscccecacesscesanse 22, 23, 26

a ir ee re fe Fe retiencddcendinseracapeesieemecsnenn

CAA § 162, 42 U.S.C. § 7472.00.00... eee

ix

CAA § 163(b), 42 U.S.C. § 7473(D) wecsssesccscsseecsssseeeen 7

CAA § 164(a), 42 U.S.C. § 7474(a) ...eccsseesseees 8,15, 18

CAA § 164(b)(2), 42 U.S.C. § 7474(b)(2) ............. 8, 16

CAA § 164(c), 42 U.S.C. § 7474(c) ...ccecececceeeees passim

CAA § 165, 42 U.S.C. § 7475......... ‘adigeiiaslaneaeniaapmsiatites 14

CAA § 301(d)(2), 42 U.S.C. § 7601(d)(2) ee 9

CAA § 301(d)(2)(B),

42 U.S.C. § 7601(d)(2)(B)............. ee. 9,10, 11, 25

CAA § 301(d)(3), 42 U.S.C. § 7601(d)(3) oe. 9

CAA § 307(b)(1), 42 U.S.C. § 7601 (b)(1) ..escecseeseeee. 12

I A ia tie hi ee 7

SE TEBE cociecccicteccisertreemiesnastcoen 2

DUI I ie ah less tiaksclelarapctiiisialoien 7

The Indian Rasenndiitiin Act, 25 U.S.C. §§ 461 ef seq.

AE 1, PEER ON oii .. nae 8

FS, Bae rics We acces n cc entadaticnieeninn passim

CODE OF FEDERAL REGULATIONS

FO CF ks UPR enictstriittnsencsssansnnatnsnnintchaicinnsigtnenninhiniacaiins 10

X

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SO CFR. © TE GID) ceicccsstniiincccensssansnninisnmnpanses 6

oe hic FP Mi ici nicsotenisantieioninielensassinnissienatiainacnloneniaa 14

FEDERAL REGISTER

6 FON, Tam, FF RPS insnntesscsnnssanssnnssonaatesnnioiacanunssnnensmanes 5

OP Fn, Tee, Free Fa iaicsiencesteesntascsnitentcarinncnasienisie 9,10

ee FE, TRO, Far Ee a ieita eres nein Selliee 10

OF Fak, be, F2ae Crecente 10

Gi Fad: Rat. SF Fa Te Ci ssewvesnincncatasisvnensssosnivnevsioton 14

53 Fae, Feat DG Ca Te piven vocanssntnszenionssiniisieininianonionieniss 8

FF TOE, FG FF Cr By a crac tsncebcecnniapneseconcercintaebnciiainins 6

OTHER

House Consideration of H. Res. 733 reprinted in

LEGISLATIVE HISTORY OF THE CLEAN AIR ACT

OF 1977, Vol. 3 at 326 (Aug. 4, 1977)......... eee 17

PETITION FOR A WRIT OF CERTIORARI

The State of Michigan, Salt River Project Agricultural

Improvement and Power District, Public Service Company of

New Mexico, and the National Association of Manufacturers,

et al., (Petitioners) respectfully petition for a writ of certiorari

to review the decision of the United States Court of Appeals

for the District of Columbia Circuit in Arizona Public Service

Co., Inc., et al. v. EPA, 211 F.3d 1280 (D.C. Cir. 2000).

OPINION BELOW

The opinion of the court of appeals (App. 1a-49a) is

reported at 211 F.3d 1280, 341 U.S. App. D.C. 222. The

orders on the petitions for panel and en banc rehearing and

the court of appeals’ mandate are included in the Appendix

(App. 135a-140a).

JURISDICTION

The court of appeals entered its judgment on May 5,

2000. Timely petitions for panel and en banc rehearing were

denied by orders of the court of appeals entered on July 12,

2000. The court’s mandate issued on July 27, 2000. On

September 27, 2000, the Circuit Justice for the District of

Columbia Circuit extended the deadline for the filing of the

instant petition to and including November 9, 2000. This

Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).

STATUTORY AND REGULATORY

PROVISIONS INVOLVED IN THE CASE

This case involves portions of the Clean Air Act

§§ 110, 164, and 301 (App. 141a-147a), the Indian

Reorganization Act, §§ 461 and 465 (App. 148a-149a), and

——————————— ee

2

the Tribal Authority Rule, 63 Fed. Reg. 7254 ef seq., and 40

C.F.R. Part 49 (App. 50a-134a).

STATEMENT OF THE CASE

This case presents important issues involving federal

Indian law and the Clean Air Act, 42 U.S.C. §§ 7401 ef seg.

(CAA or the Act) that are of national importance. In its

decision below, the D.C. Circuit has fundamentally

rearranged the balance of state and tribal jurisdiction. The

court’s unprecedented decision permits tribes to exercise

CAA authority over not only lands that had been formally

established as tribal reservation lands at the time the CAA

was enacted, but also over lands that are taken into trust for

the benefit of the tribes by the U.S. Secretary of the Interior

pursuant to the Indian Reorganization Act of 1934, 25 U.S.C.

$§ 461 ef seq. (IRA). Lands taken into trust under the IRA

can include territory within a state that had always previously

been within the state’s sovereign jurisdiction. The decision

below has thereby exacerbated the tensions that have long

existed between states protective of their sovereign authority

and tribes anxious to expand the scope of the territory within

their control. |

Some historical background is necessary in order to

understand the disruptive potential of the decision below.

Under a later-abandoned policy of assimilation, the Indian

General Allotment Act of 1887, 25 U.S.C. §§ 331 er seq.,

commonly known as the Dawes Act, encouraged the

alienation of tribal reservation lands, with patents in fee

being issued to individual Indian allottees. Much of this fee

land was later sold to non-Indians. The Dawes Act also

permitted lands within reservations which were not allotted

to individual Indians to be opened to non-Indian settlement.

Beginning in 1934, the IRA put an end to the further

alienation of tribal lands. IRA § 1, App. 148a. The IRA did

not, however, automatically restore to tribes the millions of

3

acres of land which had been sold to non-Indians over the

course of the preceding 50 years. Consequently, tribal

reservations are to this day marked by a checkerboard pattern

in which tracts of land held in fee by non-Indians are

interspersed throughout tribal reservations. In some cases,

large portions of the lands within a tribal reservation may be

owned by non-Indians. See, e.g., Yankton Sioux Tribe v.

Gaffey, 188 F.3d 1010, 1016 (8th Cir. 1999) (approximately

half of reservation land area held in fee by non-Indians).

The question of who may exercise civil jurisdiction

over these non-Indian fee lands located within the exterior

boundaries of reservations - the state or the tribe? — has long

been a contentious one. Lands located within reservation

boundaries, although held in fee by non-Indians, retain their

character under federal law as “Indian country.”' Tribes

generally exercise civil jurisdiction, to the exclusion of the

states, over “Indian country,” except where such authority

has been granted to a state by treaty or Act of Congress. See,

' “Indian country” is defined at 18 U.S.C. § 1151. In relevant part,

the statute provides the term means

(a) all land within the limits of any Indian reservation

under the jurisdiction of the United States Government,

notwithstanding the issuance of any patent, and,

including rights-of-way running through _ the

reservation, (b) all dependent Indian communities

within the borders of the United States whether within

the original or subsequently acquired territory thereof,

and whether within or without the limits of a state, and

(c) all Indian allotments, the Indian titles to which have

not been extinguished, including rights-of-way running

through the same.

Although relating by its terms only to federal criminal jurisdiction, this

definition also generally applies to questions of civil jurisdiction. See,

e.g., DeCoteau v. District County Court for Tenth Judicial Dist., 420 U.S.

425, 427 n.2 (1975).

4

e.g., McClanahan v. State Tax Comm'n of Arizona, 411 U.S.

164 (1973).

At the same time, sharp limits exist on the authority

of tribes to regulate the conduct of non-Indians within

reservation boundaries, where the conduct in question occurs

on lands held in fee by non-Indians. The general rule, as

expressed by this Court in Montana v. U.S., 450 U.S. 544

(1981), holds that the “exercise of tribal power beyond what

is necessary to protect tribal self-government or to control

internal relations is inconsistent with the dependent status of

the tribes,” and so “cannot survive without express

congressional delegation” 450 U.S. at 564 (emphasis

added).’

Lands taken into trust under the IRA create a further

complication. While the IRA did not directly restore to tribes

the lands alienated during the Dawes Act era, it does

authorize the U.S. Secretary of the Interior to acquire on

behalf of tribes “any interest in lands, . . . within or without

existing reservations,” title to which is to be “taken in the

name of the United States in trust for the Indian tribe or

individual Indian for which the land is acquired.” IRA § 5,

App. 148a-149a. Under the IRA, the Secretary may, without

any apparent guidance from Congress as to the scope of his

discretion, take into trust lands acquired for tribes by the

federal government or acquired by the tribes themselves.

This includes parcels of land, both large and small, that a

* The Court also recognized, however, in what has become known as

the “second exception” to Montana’s general rule, that a tribe “may . . .

retain inherent power to exercise civil authority over the conduct of non-

Indians-on fee lands within its reservation” when that conduct “threatens

or has some direct effect on the political integrity, the economic security,

or the health or welfare of the tribe.” 450 U.S. at 566.

5

tribe might purchase outside the boundaries of its

reservation.’

While, on its face, IRA § 5 merely provides that lands

taken into trust “shall be exempt from State and local

taxation,” the U.S. Department of the Interior and lower

courts have generally assumed that such trust lands take on

the full character of “Indian country” within the meaning of

18 U.S.C. § 1151.4 Under this assumption, the IRA operates

as a mechanism by which not only tribal lands lost to the

assimilationist policies of the Dawes Act era, but also lands

that, as a historical matter, have never been within tribal

control, can be removed from the jurisdiction of the state.

This feature of the IRA, by which a state can

presumptively be divested of its sovereign jurisdiction with

respect to lands over which is previously possessed control,

through an unbounded discretionary act by a federal

department, has not escaped challenge. In South Dakota v.

1.S. Dep't of Interior, 69 F.3d 878 (8th Cir. 1995), IRA § 5

was struck down as an “unconstitutional delegation of

legislative power.” The Interior Department subsequently

petitioned for, and was granted, certiorari by this Court, but

before hearing the case on the merits the Court vacated the

Eight Circuit’s decision and remanded for reconsideration in

light of an assertedly-changed Department position. See U.S.

Dep't of Interior v. South Dakota, 519 U.S. 919 (1996).°

* Some tracts of this trust land can be quite small (e.g., no more than

an urban house jot), and lands held in trust are often mingled with lands

owned in fee by both Indians and non-Indians alike. See, e.g., Comments

of the State of Oklahoma, Department of Environmental Quality,

Regarding Indian Tribes Air Quality Planning and Management (Nov.

23, 1994), EPA Air Docket No. A-93-3087, IV-D-48, at |.

‘ See, e.g., 64 Fed. Reg. 17,578 (April 12, 1999); see also Connecticut

v. Blumenthal, 228 F.3d 82 (2nd Cir. 2000).

* Justice Scalia, joined by Justices O'Connor and Thomas, dissented

from the Court’s action.

6

It is against this backdrop of complex Indian law

issues that Congress has legislated to permit tribes to exercise

a measure of authority over air resources on lands falling

within tribal jurisdiction. Shortly after passage of the Clean

Air Act in 1970, EPA promulgated regulations designed to

“prevent the significant deterioration” of the air quality in

areas cleaner than required by the national ambient air quality

standards (NAAQS). Among the features of these “PSD”

regulations, 39 Fed. Reg. 42,510 (Dec. 5, 1974), all areas of

the country that had cleaner air than required by the NAAQS

were to be designated as “Class I,” “Class II,” or “Class III.”

All such areas were initially designated as Class II,

under which a moderate amount of deterioration in air quality

was to be permitted. The PSD regulations further provided

that areas could be redesignated to either Class I, under

which very little deterioration would be allowed for both the

area in question and for lands located considerable distances

from the area, or to Class III, under which the quality of the

air would be permitted to deteriorate up to the levels

specified by the NAAQS.

EPA in the 1974 PSD rulemaking afforded tribes a

limited measure of authority to regulate air quality on their

own lands, by providing that tribes as well as states could

make redesignations. Specifically, the 1974 PSD regulations

provided, in pertinent part, that “[w]here a State has not

assumed jurisdiction over an Indian Reservation the

appropriate Indian Governing Body may submit to the

Administrator a proposal to redesignate areas Class I, Class

II, or Class Ill.” 40 C.F.R. § 52.21(c)(3)(v) (1974).

Notably, a tribe’s redesignation authority under the

1974 PSD regulations did not extend to the entirety of

“Indian country,” but only to an “Indian Reservation.” EPA

defined that term to mean “any federally-recognized

reservation established by Treaty, Agreement, Executive

Order, or Act of Congress.” 40 C.F.R. § 52.21(b)(4)(1974)

(emphasis added). This definition thus incorporated the full

7

range of political mechanisms by which public lands have

been “reserved” for the benefit of Indian tribes by direct

action of Congress or the President over the course of the

country’s history. See, e.g., Sioux Tribe of Indians v. U.S., 94

Ct.Cl. 150, 170 (1941), aff'd 316 U.S. 317 (1942) (Observing

that there are “three kinds of Indian reservations: those

which are created by treaties previous to 1871; those which

have been created by acts of Congress since 1871; and those

made by Executive Orders whereby the President has set

apart public lands for the use of the Indians in order to keep

them within a certain territory.”).°

In 1977, Congress made significant revisions to the

CAA. Among other things, the 1977 CAA Amendments

codified, with certain changes, EPA’s 1974 PSD regulations,

retaining the basic structure of EPA’s classification scheme

for those areas of the country whose air was cleaner than

required by the NAAQS. As had been the case under the

1974 PSD regulations, an area’s designation established the

maximum degree to which concentrations of various

regulated pollutants over baseline levels, known as

“increments,” would be permitted to increase in that area.

Under CAA § 163(b), the increments for Class I were made

four to 10 times more stringent than the corresponding Class

II increments.

In turn, CAA § 161 required that “each applicable

implementation plan” contain “emission limitations and such

other measures as may be necessary” to prevent significant

® The creation of Indian reservations through treaties was ended by

Congress in 1871. See 25 U.S.C. § 71. When formal treaty making was

abandoned, the federal government continued to make agreements with

Indian tribes, which agreements were similar to treaties but which

required approval by both houses of Congress. See generally Felix S.

Cohen, Handbook of Federal Indian Law (1982 ed.) at 105-07. Congress

prohibited the creation of further “Executive Order reservations” in 1919.

See 43 U.S.C. § 150; see also 25 U.S.C. § 398d.

a ee ee

8

deterioration of the air quality in any clean air area. As a

consequence, redesignation has an immediate impact on

nearby facilities regulated under the CAA, with additional

controls or even shutdown being required if necessary in

order to protect a Class I area’s more stringent increments.

In 1977, Congress initially designated the entire

geographic area of the country as Class II (with the exception |

of specified parks of a certain size, which were permanently |

designated Class I). CAA§ 162. At the same time, pursuant |

to CAA § 164(a), states were authorized to redesignate the

balance of the lands within their borders as either Class I or

as Class Ill, with one significant exception: CAA § 164(c)

specified that “[l]ands within the exterior boundaries of

reservations of federally recognized Indian tribes may be

redesignated only by the appropriate Indian governing body.”

App. 144a-145a.

Thus, Congress expressly delegated to tribes authority

to redesignate their reservations, as they had previously been

permitted to do by EPA in its 1974 PSD regulations.’ While

the 1977 Amendments did not include a statutory definition

for the term “reservation,” the Amendments were adopted

against the backdrop of the 1974 PSD regulations. As a

result, following enactment of the 1977 Amendments, EPA

continued to define “reservation” to mean a_ federally-

recognized reservation “established by Treaty, Agreement,

Executive Order, or Act of Congress.” See 40 C.F.R. § 52.21

(b)(15) (1978); 43 Fed. Reg. 26,404 (June 19, 1978). |

Congress did not undertake another major revision to

the CAA until 1990. At that time, EPA was directed to

“promulgate regulations . . . specifying those provisions” of

’ Both states and tribes were afforded unlimited discretion in making

their redesignation decisions, with EPA being authorized to disapprove a

redesignation request only where certain procedural requirements have

not been met. See CAA § 164(b)(2), App. 144a.

ae |

9

the CAA “for which it is appropriate to treat Indian tribes as

States,” with such treatment of a given tribe being authorized

under the Act “only if” certain specified conditions are met.

CAA § 301(d)(2), App. 146a-147a. Among other things, the

“functions to be exercised” by the tribe have to “pertain to

the management and protection of air resources within the

exterior boundaries of the reservation or other areas within

the tribe’s jurisdiction.” CAA § 301(d)(2)(B), App. 147a.

In addition, the Agency was also authorized, although

not required, to “promulgate regulations which establish the

elements of tribal implementation plans,” or TIPs. CAA

§ 301(d)(3), App. 147a. Under CAA § 110(0), when a TIP

“becomes effective in accordance with the regulations

promulgated” under CAA § 301(d), the TIP will “become

applicable to all areas (except as expressly provided

otherwise in the plan) located within the exterior boundaries

of the reservation, notwithstanding the issuance of any patent

and including rights-of-way running through the reservation.”

App. 14la. ;

The 1990 CAA Amendments made no changes to the

tribal redesignation provisions in CAA § 164(c). And while

the term “reservation” was used throughout the new

“treatment as States” provisions, as in 1977, Congress found

it unnecessary to provide a statutory definition of the term to

supplant EPA’s existing regulatory definition.

On February 12, 1998, EPA promulgated the

regulations required under CAA § 301(d)(2). 63 Fed. Reg.

7254; 40 C.F.R. Part 49, App. 50a-134a. Known collectively

as the Tribal Authority Rule, or TAR, the new regulations

were intended by EPA to have broad effect, in three

fundamental respects.

First, the Agency construed the “treatment as States”

provisions of the 1990 CAA Amendments as constituting an

“express delegation” by Congress to “address conduct

relating to air quality on all lands, including non-Indian-

owned fee lands, within the exterior boundaries of a

0

10

reservation” 63 Fed. Reg. 7254, App. 54a. EPA discerned

this “express delegation” in the language of CAA

§ 301(d)(2B). In EPA’s view, the “most plausible reading

of the phrase ‘within . . . the reservation or other areas within

the tribe’s jurisdiction’ is that Congress intended to grant to

an eligible tribe jurisdiction over its reservation without j

requiring the tribe to demonstrate its own jurisdiction,” but to

“require a tribe to demonstrate jurisdiction over any other

areas, i.e, non-reservation areas, over which it seeks to

implement a CAA program.” 63 Fed. Reg. 7255, App. 56a.

Second, EPA defined “Indian Reservation,” for

purposes of the TAR, as the Agency viewed that term as

being defined in the “Indian country” statute. Compare 40

C.F.R. § 49.2(b), App. 121a, with 18 U.S.C. § 1151(a). The

Agency explained that, under this definition, “trust lands that

have been validly set apart for the use of a tribe even though

the land has not been formally designated as a reservation”

would be considered as “reservation” land for CAA purposes.

63 Fed. Reg. 7258, App. 67a. As a consequence, tribes

would be authorized not only to develop TIPs that covered

these off-reservation trust lands, but also to redesignate such

lands under CAA § 164(c), even though they had never been

established as reservation lands by “Treaty, Agreement,

Executive Order, or Act of Congress.”

Third, EPA construed the “treatment as States”

provisions as authorizing it to promulgate regulations that

allowed tribes to exercise authority not only over reservation

-lands, but also to “develop and implement tribal air quality

programs in non-reservation areas that are determined” by

EPA as being “within the tribe’s jurisdiction.” 63 Fed. Reg.

7258, App. 70a. In other words, under the TAR, a tribe

would be permitted to adopt TIPs and make CAA § 164(c)

redesignations for lands located outside the exterior

boundaries of reservations, upon the tribe’s demonstrating

“inherent” jurisdiction over such lands under the “second

exception” to Montana.

1]

On review, the D.C. Circuit upheld the TAR. A

majority of the panel (Judges Edwards and Rogers) agreed

with EPA that the language of CAA § 301(d)\(2\B)

constituted an “express delegation” of authority from

Congress to tribes of the authority to regulate air quality over

all lands within the exterior boundaries of reservations,

including non-Indian fee lands. 211 F.3d at 1288-92, App.

lla-21a.*

Further, the panel upheld EPA’s definition of

“reservation” to include off-reservation IRA trust lands. The

panel, noting that “reservation” was not an expressly defined

term under the CAA, ignoring the legislative and regulatory

history of the term under the Act, and relying on the

dictionary alone, determined that the term “surely

encompasses both trust lands and formally designated

reservations.” 211 F.3d at 1293, App. 23a. From this, the

panel concluded, based on this Court’s decision in Oklahoma

Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of

Oklahoma, 498 U.S. 505 (1991), and follow-on decisions by

lower courts, that is could not “condemn as unreasonable

EPA’s interpretation” of “reservation” to include off-

reservation trust lands. 211 F.3d at 1294, App. 25a-26a.

Finally, the panel upheld EPA’s reading of the CAA

as allowing tribes to adopt TIPs, and make CAA § 164(c)

redesignations, for those lands located outside the exterior

boundaries of reservations over which the tribes could

demonstrate jurisdiction. Rejecting petitioners’ claim that

* Dissenting from this portion of the opinion, Judge Ginsburg rejected

the majority's finding of an “express delegation” in CAA § 301(d\(2XB),

pointing instead to the language of CAA § 110(0) as constituting such a

delegation, but only with respect to tribes’ authority to adopt TIPs that

covered all lands, including non-Indian fee lands, within the exterior

boundaries of reservations. Judge Ginsburg found no express delegation

as to other CAA programs. 211 F.3d at 1300-05, App. 38a-48a.

12

both CAA §§110(0) and 164(c), by their plain terms,

imposed geographical limitations on the scope of tribal

authority, the panel found EPA’s reading of the Act to be

“undoubtedly” reasonable. 211 F.3d at 1295, App. 26a-28a.

The D.C. Circuit subsequently denied petitions for

panel and en banc rehearing. App. 135a-138a.

REASONS FOR GRANTING THE PETITION

The D.C. Circuit’s decision affirms a legislative rule

that will govern all future approvals of tribal redesignations

and TIP programs under the CAA. Under the judicial review

structure of the CAA, no future conflict in the federal

Circuits on the questions presented in this petition could be

created.” Accordingly, this is the only opportunity for this

Court to resolve the important questions presented in this

petition.

The D.C. Circuit’s decision has occasioned an

unlikely convergence of two remarkable, and heretofore

unrelated, provisions of federal law. The consequences of

this convergence, which profoundly alters the balance of

sovereign authority between states and tribes with respect to

lands within their respective jurisdictions, provide

compelling reasons for granting this petition.

The first of these provisions is CAA § 164, which

permits both the states and the tribes, in the exercise of

absolute discretion, to redesignate their lands to a more

stringent air quality classification. Redesignation can restrict

the level of growth and development in not only the area

redesignated to Class I, but also in lands many miles distant

* Under CAA § 307(b)(1), the D.C. Circuit has exclusive jurisdiction

to review legislative rules of national applicability like the TAR. As a

result, no other court of appeals can pass on the validity of the TAR, or

question the interpretations of the CAA contained therein.

13

from the redesignated area, including lands of another

sovereign that borders the redesignated lands.

Second is IRA §5, which authorizes the U.S.

Secretary of the Interior, through administrative action

Subject to neither the review nor the approval of Congress, to

acquire lands and hold them in trust for the benefit of an

Indian tribe. By defining “reservation” to include such trust

lands located outside the boundaries of reservations formally

established by treaty, Executive Order, or Act of Congress,

EPA has effectively stripped from the states the authority

they previously possessed to redesignate these off-reservation

lands. At the same time, tribes are now permitted to

redesignate those lands. The radical result is to allow tribes

the unilateral authority to constrain, if not stop altogether,

growth and development by non-Indians in lands under state

jurisdiction miles distant from tribal lands.

By upholding EPA’s decision to construe

“reservation” lands as including trust lands under the IRA,

which can exist in small pockets interspersed with non-Indian

lands and which are proliferating each year, the D.C. Circuit

has handed to tribes an extraordinary and ever-increasing

power over non-Indians on non-tribal lands. This is

unprecedented in law.

The decision below also works to divest states of their

authority over territory previously within their sovereign

jurisdiction by construing the “treatment as states” provisions

of the 1990 CAA Amendments as constituting a rare express

delegation of authority to tribes over reservation lands held in

fee by non-Indians. This ruling too raises a significant issue

of tribal authority over non-Indian activity. It ignores the

express terms of the CAA, providing that the Act can never

be construed as taking from the states their sovereign

authority to regulate air quality within their own borders.

i

I. Certiorari Should Be Granted to Determine

Whether EPA Has Discretion to Construe the

CAA to Give Tribes Authority to Expand the

Lands Over Which They May Exercise

Redesignation Power With Extraterritorial Effect,

and to Resolve a Split in the Circuits Regarding

This Issue.

The authority that the CAA grants to states and tribes

to redesignate clean air areas within their respective

jurisdictions to Class I is already a remarkable one.

Redesignation of an area to Class I can automatically

preclude any economic development not only within the area

that has been redesignated, but also within lands located

miles distant from that area.'° Under EPA regulations and

guidance implementing CAA § 165, EPA has recognized that

new or existing major sources located as far as 100

kilometers (approximately 62 miles) from the outer boundary

of a Class I area may affect the Class I increments.'!

Redesignation thus affords both states and tribes

extraterritorial jurisdiction to effect control over activities —

including the construction of new _ pollution-generating

facilities and the continued operation of such facilities

'° See, e.g., Kerr-McGee Chemical Corp. v. U.S. Dep't of Interior,

709 F.2d 597, 599 n.1 (9th Cir. 1983).

'' See, eg, 40 C.F.R. §52.21(p); EPA New Source Review

Workshop Manual, October 1990, at E.16 (“The meaning of the term

‘may affect’ [in CAA § 165(d)] is interpreted by EPA policy to include

all major sources or major modifications which propose to locate within

100 kilometers (km) of a Class I area.”). EPA has more recently

proposed that permit information received from sources proposing to

locate or to construct a major source modification up to 250 kilometers

(155 miles) away, be input into a database which can then be accessed by

a Class | tribal air quality manager. See 61 Fed. Reg. 38,287-288 (July

23, 1996).

15

already in existence — occurring great distances outside the

States’ and outside the tribes’ respective jurisdictions. There

is perhaps no other provision of federal law that allows

sovereigns to wield extraterritorial power without any

substantive standards to guide the exercise of that power.

As it happens, in the over 20 years they have had the

power to do so under CAA § 164(a), no state has chosen to

redesignate any portion of the lands within its borders.

Tribes, on the other hand, have not been as reticent. Since

1977, six tribes have sought redesignation of their lands to

Class I. In all but the most recent case, discussed below, the

lands for which the tribe at issue sought redesignation were

indisputably lands within the boundaries of a reservation

established by treaty, Executive Order, or Act of Congress."

Under the decision below, however, any parcel of

land acquired by a tribe and taken into trust by the Secretary

of the Interior pursuant to IRA § 5 will now be considered

“reservation” land that, at the absolute discretion of the tribe,

can be redesignated to Class I. This is true even for parcels

located nowhere near a formal reservation. F urther, regulated

facilities located many miles from such redesignated trust

lands, including facilities owned by non-Indians located on

lands under state jurisdiction, could be forced to change the

nature or scope of their operations, install prohibitively-

expensive pollution controls, or even shut down, if air quality

modeling indicates that this is necessary in order to protect

the Class I increments for the tribe’s redesignated trust land.

Consequently, this process affords tribal governments

unbridled ability to impose Class I standards affecting vast

areas of a sovereign state, even over that state’s objection.

As a result, state-planned growth in geographic areas under

sovereign state jurisdiction cou!d be restricted or prohibited

'? See generally Ann Juliano, Redesignating Tribal Trust Land under

Section 164(c) of the Clean Air Act, 35 Tulsa L.J. 37 (Fall 1999),

16

altogether. The development and implementation of urban

and industrial land use policy by state and local governments,

which have not only the authority but the duty to manage

their respective state and local resources, would be

undermined.

Unless this Court intervenes, states will be powerless

to do anything about this geographic expansion and exercise

of tribal authority. Tribes can buy up lands available for sale

on the open market, and states cannot preclude the Secretary

of the Interior from taking such lands into trust pursuant to

IRA §5. Under the IRA, the Secretary’s decision is

effectively committed to his discretion, as the Eighth Circuit

recognized in South Dakota v. U.S. Dep't of Interior, 69 F.3d

878 (8th Cir. 1995), vacated 519 U.S. 919 (1996). And once

the tribe proposes to redesignate a parcel, EPA must approve

the request, if the tribe’s proposal otherwise meets certain

procedural requirements. CAA § 164(b)(2), App. 144a.

These are among the consequences that stem directly

from the D.C. Circuit’s twin findings that, as used in the

CAA, the term “reservation” was ambiguous, and that EPA’s

new regulatory definition was a “reasonable” exercise of the

Agency’s rulemaking authority under the second prong of

Chevron U.S.A. v. Natural Resources Defense Council, 467

U.S. 837 (1984). In both respects, the court erred.

To begin with, the D.C. Circuit failed to discern any

specific congressional intent with respect to the term

“reservation” in the CAA only because the court made no

real effort to look for it. The court’s analysis, under the first

prong of Chevron, consisted of little more than a

determination that “reservation” was not an expressly defined

term under the CAA. Finding no statutory definition, the

court relied on the dictionary, rather than the relevant

legislative and regulatory history of the term under the CAA,

in concluding that the term, as used in the Act, was

ambiguous. App. 22a-24a.

17

It is not the dictionary, however, that determines

whether “reservation,” as used in the CAA, is ambiguous.

Under Chevron, the inquiry must focus on Congress’s — not

Webster’s — understanding of the term. Far from creating an

“ambiguity” as to the term’s meaning, the absence of a

specific definition of “reservation” in the CAA in fact reflects

congressional recognition of how the term has historically

been understood: i.e., territory set apart for the benefit of

tribes by treaty, Executive Order, or Act of Congress. See

pp. 6-7 & n. 6, supra. .

When it first used the term “reservation” in the 1977

Amendments, Congress was aware that EPA had previously

defined the term in its 1974 PSD regulations to mean lands

set apart by treaty, Executive Order, or Act of Congress. The

legislative history of the 1977 Amendments confirms that

Congress was neither enlarging nor diminishing the lands

that tribes could redesignate. For instance, during debate in

the House over the Conference Report, the floor manager

explained that, in codifying the then-existing regulatory

program, the “conference bill provides that both States and

Indian tribes will continue to have the power they now have

to redesignate their lands to a new air quality classification.”

See House Consideration of H. Res. 733 reprinted in

LEGISLATIVE HISTORY OF THE CLEAN AIR ACT OF 1977, Vol. 3

at 326 (Aug. 4, 1977) (emphasis added).

Moreover, EPA retained the 1974 _ regulatory

definition of “Indian reservation” following enactment of the

1977 Amendments. Had Congress disagreed with EPA’s

decision to so define the scope of tribal redesignation

authority, it would have so indicated at the time it used the

term “reservation” in enacting the “treatment as states”

provisions in 1990. It did not do so.

The D.C. Circuit’s finding that Congress had no

discernible intent with respect to its use of the term

“reservation” in the CAA is tantamount to its concluding that

Congress gave EPA discretion to determine what lands tribes

18

could redesignate, even though redesignation allows tribes to

control the activities of non-Indians on non-Indian lands.

Petitioners are unaware of any prior instance in which a court

has permitted the demarcation of state and tribal jurisdiction

over non-Indians to be delegated to a federal administrative

agency. Indeed, given the presumption under federal Indian

jurisprudence that, absent a clear expression of congressional

intent, tribes have no jurisdiction over the activities of non-

Indians on non-Indian lands located within reservation

boundaries, the court’s conclusion that EPA has discretion to

determine the scope of the boundaries themselves — and then

to allow for tribal regulation outside of those boundaries — is

a striking result.’

Even assuming that EPA could be said to have some

discretion to define “reservation” for CAA purposes, the D.C.

Circuit was still wrong when it found that EPA could

“reasonably” interpret the term to include off-reservation

lands taken into trust pursuant to IRA § 5. In light of the

extraordinary extraterritorial effects attendant to a tribe’s

exercise of its authority to redesignate reservation lands to

Class I under the CAA, and the implications which

redesignation has with respect to the activities of non-Indians

on non-Indian lands, EPA’s construction of the term

“reservation” to include lands which have been, or which one

day might be, taken into trust through the exercise of

'' If this result is striking, then the D.C. Circuit’s further conclusion

that tribes are authorized by the “treatment as states” provisions to

redesignate lands located outside reservation boundaries is inexplicable.

According to the court, all that CAA § 164(c) “establishes . . . is the

exclusive power of Indian tribes to redesignate land within a reservation;

it does not address the inherent power of tribes to redesignate land in

non-reservation areas.” 211 F.3d at 1295, App. 27a. What the court

overlooks, however, is that CAA § 164(a) unambiguously reserves to the

states the exclusive authority to redesignate all lands other than

reservation lands.

a

19

unreviewable discretion by the Secretary of the Interior raises

serious constitutional problems. See, e.g., Edward J.

DeBartolo Corp. v. Florida Gulf Coast Building &

Construction Trades Council, 485 U.S. 568, 574-75 (1988)

(Chevron deference must give way “where an otherwise

acceptable construction of a statute would raise serious

constitutional problems.”).

The D.C. Circuit spoke approvingly of EPA’s having

“supported its interpretation of ‘reservation’ by looking to

relevant case law,” in particular “Supreme Court precedent

holding that there is no relevant distinction between tribal

trust land and reservations for the purpose of tribal sovereign

immunity.” 211 F.3d at 1294, citing Oklahoma Tax Comm'n

v. Citizen Band, Potawatomi, 498 U.S. 505 (1991); U.S. v.

John, 437 U.S. 634 (1978), App.25a. But EPA’s reliance on

these precedents as support for the TAR’s definition of

“reservation” is misplaced, as is the D.C. Circuit’s

confidence that cases such as Potawatomi and John establish

the “reasonableness” of EPA’s exercise of the “discretion”

the Agency supposedly possesses.

In each of three cases in which this Court has opined

that trust lands, never formally declared to be “reservations,”

nonetheless constituted de facto or “informal” reservation

lands, none of the lands in question were lands that had been

taken into trust by the Secretary of the Interior pursuant to

IRA § 5. Rather, the trust lands at issue had taken into trust

at either the express direction of Congress (John and

Potawatomi) or by treaty (Oklahoma Tax Comm'n y. Sac and

Fox Nation, 508 U.S. 114 (1993)).

In other words, like formal reservations, the trust

lands at issue in the Supreme Court cases on which EPA and

the D.C. Circuit placed such reliance had originally been set

apart for the benefit of the tribes in question through direct

congressional and Presidential action. This Court has yet to

resolve whether lands that are taken into trust pursuant to

administrative action of the Secretary of the Interior under

20

$5 of the IRA would similarly constitute a de facto or

“informal” reservation.

The distinction between (i) lands placed into trust

pursuant to treaties, Executive Orders, or specific acts of

Congress, and (ii) lands taken into trust by the Secretary of

the Interior exercising unreviewable authority under IRA § 5

is critically important to the case at hand. It is one thing for

Congress to extend to tribes under the CAA the authority to

redesignate lands previously set aside for their benefit

pursuant to action by Congress and the President, action for

which there is direct political accountability. It is another

thing for Congress to establish an elastic redesignation power

under which the lands that can be redesignated by tribes may

be expanded without limitation through: actions of the

Secretary of the Interior that are committed to his discretion.

Given that “treaty reservations” and “Executive Order

reservations” were all created before the 1977 CAA

Amendments (see note 6, supra), Congress, by restricting

tribal redesignations to lands within reservations established

by Act of Congress, treaty, or Executive Order, ensured that

the lands that states could redesignate, and the lands that

tribes could redesignate, were specifically identified at the

time the CAA was amended in 1977, and that those lands

could not be changed except by further act of Congress.

Where new reservations might be established after 1977

through act of Congress, concerns over the redesignation of

those new reservations could be addressed in conjunction

with the legislative process itself.

It is an altogether different matter, however, to

construe the CAA as authorizing tribes to redesignate off-

reservation lands taken into trust under IRA § 5. There being

no constraints on the discretion of the Secretary of the

Interior to take lands into trust, there would be no check on

the tribes’ gaining ever-expanding power over the activities

of non-Indians on non-Indian lands. Review by this Court of

this expansion of tribal jurisdiction to redesignate outside

21

established formal reservations is thus imperative, if a

constitutionally-sound balance between state and tribal

authority under the CAA is to be restored.

Finally, review is necessary to resolve the conflict

created by the D.C. Circuit's holding with the prior decision

of the U.S. Court of Appeals for the Ninth Circuit in Arizona

v. EPA, 151 F.3d 1205 (9th Cir. 1998), as amended, 170 F.3d

870 (1999). In Arizona v. EPA, the Ninth Circuit addressed a

challenge to the decision by EPA to approve the

redesignation to Class I of five parcels of land by the

Yavapai-Apache Tribe. Among other things, the petitioners

in that case argued that four of the parcels in question, while

held in trust by the U.S. government for the benefit of the

Tribe, did not constitute lands within the exterior boundaries

of a “reservation” within the meaning of CAA § 164(c).

In response to this argument, the Ninth Circuit found

that there was “insufficient evidence in the record to support

a finding that these parcels have been declared to be

reservations by Act of Congress,” or that the parcels “have

been added to the Middle Verde reservation [i.e., the one

parcel which, the petitioners had conceded, was a formally-

established “reservation”] by proclamation of the Secretary

of the Interior pursuant to the Indian Reorganization Act.”

Arizona, 151 F.3d at 1210-11. The court thus rejected EPA’s

position that the trust status of the parcels alone was

sufficient for their being considered “reservation” lands

under the CAA. Accordingly, the court remanded to EPA to

“determine whether the parcels are reservations for purposes

of 42 U.S.C. § 7474(c),” should the Agency re-promulgate its

redesignation decision (which had been rejected by the court

on other grounds). /d. at 1211, as amended, 170 F.3d at 870.

Although Petitioners here had directed the D.C.

Circuit’s attention to the Ninth Circuit’s decision in Arizona

v. EPA, the D.C. Circuit failed even to acknowledge the

existence of the case. The D.C. Circuit’s finding that EPA’s

definition of “reservation” was a “reasonable” interpretation

22

of the CAA cannot be reconciled with the Ninth Circuit’s

determination that trust status alone is insufficient to deem

lands located outside the exterior boundaries of formally-

established reservations as being “reservations” within the

meaning of CAA § 164(c).

Il. This Court Should Resolve Whether the CAA Can

Be Construed as Delegating to Tribes Authority to

Regulate Air Resources on Non-Indian Fee Lands,

Given That the CAA Expressly Precludes States

Being Divested of Authority Over Lands

Otherwise Within Their Jurisdiction.

This case for the first time presents the question

whether the language of the CAA speaks with the clarity

required by this Court for Congress to delegate to tribes the

authority to regulate the conduct of non-Indians on fee lands

within reservation boundaries. As the D.C. Circuit itself

acknowledged, there have been historically “few examples of

congressional delegation of authority to tribes.” 211 F.3d at

1288, App. 12a. The uncommon nature of the event, and the

resulting displacement of state sovereignty that flows from a

judicial determination that Congress has intended to delegate

to tribes authority over lands previously within the

jurisdiction of a state, provide compelling reasons for this

Court to review the D.C. Circuit’s determination. This is

particularly true given that the plain language of the CAA

precludes the Act’s being construed in such fashion.

From its inception in 1970, the CAA has never

operated to remove from a state the authority that the state

might otherwise possess under its own laws to regulate air

emissions from sources located within such _ state.

Specifically, CAA §116, entitled “Retention of state

authority,” provides, in pertinent part, that, except as

otherwise provided in certain sections of the Act not relevant

here, “nothing in this [Act] shall preclude or deny the right of

23

any State or political subdivision thereof to adopt or enforce

(1) any standard or limitation respecting emissions of air

pollutants or (2) any requirement respecting control or

abatement of air pollution” (emphasis added).

By its plain terms, this provision precludes the

“treatment as states” provisions from constituting an express

delegation to tribes of regulatory authority over non-Indian

fee lands within reservation boundaries. To construe the

1990 CAA Amendments as giving tribes authority to regulate

on non-Indian fee lands is to find that the Amendments took

that same authority away from those states that previously

exercised jurisdiction over such lands. The Act cannot be so

construed, as CAA § 116 makes clear.

Even if CAA §116 did not itself preclude the

interpretation which EPA, and the D.C. Circuit, have given to

the “treatment of states” provisions, the conclusion that those

provisions constitute an “express delegation” cannot be

supported. In the first place, it is no small irony that the

CAA does not even treat states in the manner in which the

TAR treats tribes “as states.” That is, the Act has never been

understood as granting to states regulatory authority over

sources within their boundaries that states could not

otherwise regulate under state law.'* The D.C. Circuit never

explained how, in light of this, a statutory provision by which

Congress affords EPA discretion to treat tribes “as states” can

possibly be read as giving tribes authority they otherwise

lack.

Moreover, the specific language of the “treatment as

States” provisions in which the panel majority pinpointed the

'* Rather, in those circumstances where a state cannot, pursuant to

State law, adopt a regulatory program that meets the Act’s requirements,

EPA will refuse to approve that program and will itself adopt an Agency-

administered program in its place. See CAA §§ 110(c); 110(a)(2)(E)

(program must be enforceable under state law).

24

supposed “express delegation” simply does not support that

conclusion, as Judge Ginsburg in his dissent succinctly

explained. 211 F.2d at 1302-04, App. 43a-48a. According to

Judge Ginsburg, there “is no way to read the phrase deemed

crucial” by the panel majority “as an express delegation.” /d.

at 1302 (emphasis added), App. 44a.

It is not often that a federal statute is construed as

expressly delegating authority to tribes, thereby divesting

states of authority over lands previously within their

jurisdiction. Where, as here, that rare result has been reached

by a panel of the U.S. Court of Appeals which could not even

reach agreement as to how Congress supposedly effectuated

that result, there is a compelling need for this Court’s review.

Finally, underscoring the importance of review, the

Ninth Circuit, in recently establishing what it terms a “clear

statement rule” for ascertaining whether a statute expressly

delegates authority to tribes, has explicitly adopted the

reasoning employed by Judge Ginsburg in his dissent. The

significance of the Ninth Circuit’s decision lies not only in

the fact that it conflicts with the approach taken by the panel

majority in Arizona Public Service Co., but that the Ninth

Circuit has embraced an approach that is itself subject to

misapplication.

In Bugenig v. Hoopa Valley Tribe, No. 99-15654,

2000 WL 1459373 (9th Cir. (Cal.) Oct. 3, 2000), the Ninth

Circuit addressed the question whether the Hoopa-Yurok

Settlement Act of 1988 expressly granted to the Hoopa

Valley Tribe authority over a particular parcel of reservation

land which was owned in fee by a non-Indian. At issue was a

statutory provision which the district court had interpreted as

constituting a “congressional delegation of authority to the

Tribe to exercise” jurisdiction over the land in question. /d.

at *3. The Ninth Circuit reversed.

In so doing, the Ninth Circuit cited what it termed the

“delegations of congressional authority to Indian tribes that

have been recognized by the Supreme Court,” noting that

25

each of these other statutory provisions, “employ[ed] the

same standard language to achieve delegation,” i.e. by giving

Indian tribes authority over all land within the geographical

boundaries of the reservation, “notwithstanding the issuance

of any patent.” /d at *5. “This recognized delegation

language,” the Ninth Circuit observed, was “conspicuously

absent from the Settlement Act section relied upon by the

Tribe.” Jd.

In terms of “evaluating the significance of this

omission,” the Ninth Circuit continued, it found “highly

persuasive the treatment of a similar omission in statutory

language” by Judge Ginsburg in his dissent in Arizona Public

Service Co. Bugenig, id. at *6. Taking note that Judge

Ginsburg had termed the “notwithstanding the issuance of

any patent” proviso the “gold standard” for express

delegations, the Ninth Circuit found it “appropriate to adopt

in this context a ‘clear statement rule.” Bugenig, id. at *6,

*7. “If Congress uses the ‘notwithstanding proviso,”” the

Ninth Circuit said, it will find that an “appropriate delegation

has been made.” /d at *7. Where, on the other hand, the

Ninth Circuit concluded, a “tribe claims that some other

Statutory language represents a conferral of jurisdiction,”

such alternative language “must, on its face, represent a

pellucid delegation of the claimed authority.” /d

Applying this “clear statement rule,” the Ninth Circuit

would disagree with the panel majority in the decision below

that the language of CAA §301(d)(2)(B) constitutes a

delegation of authority to tribes. The delegation which the

majority found to be “implied” by that provision hardly

satisfies the Ninth Circuit’s requirement that alternative

delegation language be “pellucid.”

The Ninth Circuit has failed to appreciate, however,

that Judge Ginsburg’s own misapplication of the “gold

standard” proviso in fact led him to the wrong conclusion

regarding the effect of that provision in CAA § 110(0). As

was previously noted, the proposition that any portion of the

26

Act delegates to tribes authority they otherwise lack over

non-Indian fee lands within the jurisdiction of states is

refuted by CAA § 116, which ensures that states retain

whatever authority they might possess over such lands.

Judge Ginsburg’s flawed account as to the effect of

the “notwithstanding” proviso in CAA § 110(0) illustrates the

dangers inherent in an automatic application of the Ninth

Circuit’s newly-minted “clear statement rule.” Review by

this Court is necessary in order to forestall the Ninth Circuit

and other Circuits from reading more into the

“notwithstanding” proviso than Congress, in a given statutory

context, intended.

CONCLUSION

For the foregoing reasons Petitioners respectfully

request that this petition for a writ of certiorari be granted.

JENNIFER M. GRANHOLM

ATTORNEY GENERAL

THOMAS L. CASEY

SOLICITOR GENERAL

JOHN FORDELL LEONE

ASS’T ATTORNEY GENERAL

300 S. Washington Square

Suite 315

Lansing, Michigan 48913

(517) 373-7540

Counsel for the State of

Michigan

BRIAN J. RENAUD

HOWARD & HOWARD

ATTORNEYS, P.C.

Pinehurst Office Center

39400 Woodward Avenue

Bloomfield Hills,

Michigan 48304

(248) 645-1483

Counsel for the

National Association of

Manufacturers, et al.

27

Respectfully submitted,

HENRY V. NICKEL

(COUNSEL OF RECORD)

DAVID S. HARLOW

HUNTON & WILLIAMS

1900 K Street, N.W.

Washington, D.C. 20006

(202) 955-1500

Counsel for Salt River

Project Agricultural

Improvement and Power

District and Public Service

Company of New Mexico

JOHN B. WELDON, JR.

KAREN S. GAYLORD

SALMON, LEwis &

WELDON, P.L.C.

4444 North 32nd Street

Phoenix, Arizona 85018

(602) 801-9060

Counsel for Salt River

Project Agricultural

Improvement and

Power District