Appendix — Michigan v. Environmental Protection Agency

o ©O0-W

No. ——

IN THE

Supreme Court of the Anited States

STATE OF MICHIGAN, et al.,

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

APPENDIX TO 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 Project Agricultural

(517) 373-7540 . Improvement and Power

Counsel for the State of District and Public Service

Michigan

November 9, 2000

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 i01

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 C ommerce, Inc.

mieten

APPENDIX TABLE OF CONTENTS

Arizona Public Service Co., et al., v. U.S.

Environmental Protection Agency, 211 F.3d

1280 (D.C. 2000)........cccesceeeeseeseeseseeeeseessenetneneteenenens la

Tribal Authority Rule, 63 Fed. Reg. 7254,

et seg. (February 12, 1998)........::ssceesereeseseersesseeeee 50a

Order (Denying Petition for Rehearing)......... Salata 135a

Order (Denying Petition for

Rehearing €71 DAN) ......ccccccceceseseseeseseneeeneesenetseneees 137a

JUd GME ............secseseeeeceeesesesseeeseneneesenenensesseeeeneees 139a

Relevant Statutory ProviSiOns ...........::::seseeeereeees 14la

la

APPENDIX A

UNITED STATES COURT OF APPEALS

For the District of Columbia Circuit

Argued January 27, 2000 Decided May 5, 2000

No. 98-1196

Arizona Public Service Company,

Petitioner

Environmental Protection Agency,

Respondent

State of Michigan, et al.,

Intervenors

Consolidated with

98-1208, 98-1206, 98-1207, 98-1208

On Petitions for Review of an Order of the

Environmental Protection Agency

Thomas Sayre Llewellyn argued the cause for petitioner

Arizona Public Service Company. With him on the briefs

were Michael B. Wood and George Y. Sugiyama.

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Henry V. Nickel argued the cause for petitioners National

Association of Manufacturers, et al. and Intervenors State of

Michigan and Central and South West Services, Inc. With

him on the briefs were David S. Harlow, John B. Weldon, Jr.,

Brian J. Renaud, Jennifer M. Granholm, Attorney General

for the State of Michigan, and John Fordell Leone, Assistant

Attorney General for the State of Michigan. Norman W.

Fichthorn, Cynthia H. Evans, Roy S. Belden, Janice S.

Amundson, Donald D. Skypeck, Harold P. Quinn, Jr., and

Thomas L. Casey, Solicitor General for the State of

Michigan, entered appearances.

Thomas A. Lorenzen and Cynthia A. Drew, Attorneys,

United States Department of Justice, argued the cause for

respondent. With them on the briefs were Lois Schiffer,

Assistant Attorney General, Anthony F. Guadagno and

Michael W. Thrift, Attorneys, United States Environmental

Protection Agency.

Jill E. Grant argued the cause for intervenors Gila River

Indian Community, et al. With her on the brief were William

W. Quinn and Jeanette Wolfley. Reid P. Chambers entered

appearances.

Before: Edwards, Chief Judge, Ginsburg and Rogers,

Circuit Judges.

Opinion for the Court filed by Chief Judge Edwards.

Opinion concurring in part and dissenting from Part II.A.

filed by Circuit Judge Ginsburg.

Edwards, Chief Judge: In 1990, Congress passed a

compendium of amendments to the Clean Air Act (““CAA” or

“the Act”). This case concerns those amendments that

specifically address the power of Native American nations

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(or “tribes”) to implement air quality regulations under the

Act. Petitioners challenge the Environmental Protection

Agency’s (“EPA” or “the Agency”) regulations, promulgated

in 1998, implementing the 1990 Amendments. See Indian

Tribes: Air Quality Planning and Management, 63 Fed. Reg.

7254 (1998) (to be codified at 40 C.F.R. pts. 9, 35, 49, 50,

and 81) (“Tribal Authority Rule”). Petitioners’ principal

contention is that EPA has granted too much authority to

tribes.

Petitioners’ primary challenges focus on two issues. The

first is whether Congress expressly delegated to Native

American nations authority to regulate air quality on all land

within reservations, including fee land held by private

landowners who are not tribe members. The second is

whether EPA has properly construed “reservation” to include

trust lands and Pueblos.

Petitioners also raise several other challenges to the

Tribal Authority Rule. They argue: (1) that EPA violated

the Act in authorizing tribes to administer programs affecting

non-reservation “allotted lands” and “dependent Indian

communities”; (2) that EPA unlawfully declined to accept

public comments on applications to regulate by Native

American nations; (3) that EPA improperly held that the

1990 Amendments abrogated preexisting contracts under

which tribes agreed not to regulate certain privately-held

land; and (4) that EPA improperly interpreted the 1990

Amendments to exempt Native American nations from

certain of the Act’s judicial review requirements.

We find petitioners’ challenges to be mostly meritless.

We hold that the Agency did not err in finding delegated

authority to Native American nations to regulate all land

within reservations, including fee land owned by

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nonmembers. We also uphold EPA’s construction of

“reservation” to include trust lands and Pueblos. Likewise,

we reject the challenge to the Agency’s decision to exempt

Native American nations from some of the Act’s judicial

review requirements. Petitioners’ complaint regarding the

adequacy of public comment on tribal applications is moot.

And petitioners’ claim that EPA has abrogated preexisting

agreements not to regulate is unripe for review, as is one of

petitioners’ arguments challenging the Agency’s decision on

the Act’s judicial review requirements.

I. BACKGROUND

A. Statutory Background

The Act establishes a framework for . federal-state

partnership to regulate air quality. The provisions of the

1990 Amendments under review, fairly read, constitute an

attempt by Congress to increase the role of Native American

nations in this partnership. There are three areas of

regulation under the Act particularly relevant to this case.

First, the Act grants states primary responsibility for

assuring that air quality meets national standards. See 42

U.S.C. § 7407(a) (1994). States meet this burden by

submitting state implementation plans (“SIPs”) _ that

“provide[ ] for implementation, maintenance, and

enforcement” of these standards. /d § 7410(a)(1) (1994).

SIPs must be approved by the Agency before they may be

federally enforced. In 1990, § 7410 was amended to

authorize Native American nations to submit tribal

implementation plans (““TIPs”) “applicable to all areas . . .

located within the exterior boundaries of the reservation.” /d

§ 7410(0).

Sa

Second, the Act permits states and Native American

nations to “redesignate” lands pursuant to the Act’s

Prevention of Significant Deterioration (“PSD”) program.

See id. § 7474(a), (c) (1994). Under the PSD program, land

is classified as Class I, II, or Ill. The land’s classification

determines the maximum allowable increase over the

baseline by which concentrations of sulfur dioxide and other

particulate matter shall not be exceeded. See id § 7473

(1994). Land may, under certain circumstances, be

redesignated as Class I, II, or Ill. See id § 7474(a). Since

1977, Native American nations have had authority to

redesignate land “within the exterior boundaries of

reservations.” Jd. § 7474(c).

Finally, under Title V of the Act, states must develop a

comprehensive permitting program applicable to major air

pollution sources. See id. § 7661a (1994). The Agency must

approve the permitting program; if none is approved, EPA

must promulgate a permitting program that will be federally

enforceable. See id. § 7661a(d)(3). One of the requirements

for approval is that the program provide for judicial review of

permitting actions. See id § 7661a(b)(6), (7). Petitioners

claim that the Agency has improperly interpreted the 1990

Amendments to give Native American nations the possibility

of exemption from some portions of the judicial review

requirements.

Importantly, the 1990 Amendments added language to

the Act granting EPA the “author[ity] to treat Indian tribes as

States under this chapter,” id § 7601(d)(1)(A) (1994),

provided tribes meet the following requirements:

(A) the Indian tribe has a governing body carrying out

substantial governmental duties and powers;

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(B) the functions to be exercised by the Indian tribe

pertain to the management and protection of air

resources within the exterior boundaries of the

reservation or other areas within the tribe’s

jurisdiction; and

(C) the Indian tribe is reasonably expected to be

capable, in the judgment of the Administrator, of

carrying out the functions to be exercised in a manner

consistent with the terms and purposes of this chapter

and all applicable regulations.

id. § 7601(d)(2).

The 1990 Amendments also directed EPA to promulgate

regulations “specifying those provisions of this chapter for

which it is appropriate to treat Indian tribes as States.” Jd. If

the Agency “determines that the treatment of Indian tribes as

identical to States is inappropriate or administratively

infeasible,” EPA may announce other ways for the Agency to

administer the program “so as to achieve the appropriate

purpose.” /d. § 760i(d)(4).

B. The Challenged Rule

On August 25, 1994, EPA , -oposed rules to implement

the 1990 Amendments. See Proposed Tribal Authority Rule,

59 Fed. Reg. 43,956 (1994) (proposed Aug. 25, 1994). On

February 12, 1998, after receiving and responding to public

comments, EPA issued the final Tribal Authority Rule. See

Tribal Authority Rule, 63 Fed. Reg. at 7254. The Agency

first found that the 1990 Amendments constitute a delegation

of federal authority to regulate air quality to Native American

nations within the boundaries of reservations, regardless of

whether the land is owned by the tribes. See id) The Agency

Ta

read the statute to support this “territorial view of tribal

jurisdiction,” authorizing a “tribal role for all air resources

within the exterior boundaries of Indian reservations without

distinguishing among various categories of on-reservation

land.” Jd. EPA believed that this “territorial approach . . .

best advances rational, sound, air quality management.” /d. at

7255. Thus, the Agency determined that Congress delegated

to tribes the authority to regulate air quality in areas within

the exterior boundaries of a reservation.

The Act does not define “reservation” for the purposes of

tribal regulation. EPA interpreted “reservation” to include

“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.” Jd. at 7258. The Agency explained that

this interpretation was consistent with the Supreme Court’s

definition of “reservation” in Oklahoma Tax Commission v.

Citizen Band Potawatomi Indian Tribe of Oklahoma, 498

U.S. 505 (1991). EPA held that it would decide on a case-

by-case basis whether other types of land may be considered

“reservations” under the Act. See Tribal Authority Rule, 63

Fed. Reg. at 7258.

ee

For areas not within a “reservation,” the Agency

determined that a tribe would be allowed to regulate such

areas if the tribe could demonstrate inherent jurisdiction over

the particular non-reservation area under general principles of

federal Indian law. See id. at 7259. This means that tribes

may propose air quality regulations in “allotted land” and

“dependent Indian communities” provided they can

otherwise demonstrate inherent jurisdiction over these areas.

Allotted land is land “owned by individual Indians and either

held in trust by the United States or subject to a statutory

restriction on alienation.” Felix S. Cohen, Handbook of

Federal Indian Law 40 (1982). Dependent Indian

Sree Sand DR OD OE

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communities include “those tribal Indian communities under

federal protection that did not originate in either a federal or

tribal act of ‘reserving,’ or were not specifically designated a

reservation.” /d. at 38.

Some commenters claimed that the Act precludes tribal

regulation in the form of TIPs in non-reservation areas.

These parties argued that the section of the Act authorizing

TIPs includes a specific provision limiting such regulation

within reservations lands. See 42 U.S.C. § 7410(0)

(providing that TIPs “shall become applicable to all areas . . .

located within the exterior boundaries of the reservation”).

EPA, however, interpreted “reservation” in § 7410(0) to be

“simply a description of the type of area over which a TIP

may apply,” and ruled that “the provision was [not] intended

to limit the scope of TIPs to reservations.” Tribal Authority

Rule, 63 Fed. Reg. at 7259. EPA’s ruling was informed by

§ 7601(d)(1) under which the Agency “decided to include

most of the provisions of [§ 7410] in the group of provisions

for which treatment of tribes in the same manner as a state is

appropriate.” /d.

The final aspect of the Tribal Authority Rule under

review relates to the provisions covering judicial review of

permitting programs. Title V of the Act authorizes regulating

authorities to establish permitting programs for pollution

sources. Section 7661a(b)(6) requires the authority to afford

“an opportunity for judicial review in State court of the final

permit action.” 42 U.S.C. § 7661a(b)(6). In its proposed

rule, EPA indicated an intention to treat tribes like states with

respect to judicial review. See Proposed Tribal Authority

Rule, 59 Fed. Reg. at 43,972. In its final rule, EPA withdrew

this proposal, requiring instead that, for Title V programs,

tribes must meet all of the requirements of § 7661a(b)(6) and

(7) “except those provisions that specify that review of final

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action under the Title V permitting program be ‘judicial’ and

‘in State court.”” Tribal Authority Rule, 63 Fed. Reg. at

7261. EPA adopted this provision in response to concerns

over tribal sovereign immunity. See Jd. Thus, EPA indicated

its willingness “to consider alternative options, developed

and proposed by a tribe in the context of a tribal CAA Title V

program submittal, that would not require tribes to waive

their sovereign immunity to judicial review but, at the same

time, would provide for an avenue for appeal of tribal

government action or inaction to an independent review body

and for injunctive-type relief to which the Tribe would agree

to be bound.” /d. at 7262.

Petitioner Arizona Public Service Company (“APS”)

filed a petition for review on April 10, 1998. The remaining

petitions for review were filed shortly thereafter; the petitions

were subsequently consolidated for consideration by this

court.

IT. ANALYSIS

Petitioners raise -several challenges to EPA’s final rule.

First, petitioners claim that the 1990 Amendments cannot be

interpreted to constitute an express delegation of authority to

Native American nations to regulate privately owned fee land

located within a reservation. Second, petitioners argue that

EPA impermissibly interpreted the word “reservation” to

include lands held in trust and Pueblos. Third, petitioners

contend that EPA impermissibly interpreted the Act to permit

Native American nations to issue TIPs and redesignations for

land outside the boundaries of a reservation. Fourth,

petitioners assert that EPA has failed to allow public

comment on tribal applications to issue regulations under the

Act. Fifth, petitioners argue that EPA’s interpretation of the

1990 Amendments effectively abrogates preexisting

an

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agreements between tribes and regulated industry. Finally,

petitioners contend that EPA’s final rule covering judicial

review procedures for Title V programs was promulgated

with insufficient notice to affected parties and that it rests on

an impermissible interpretation of the Act.

We analyze EPA’s interpretation of the Act under

familiar principles. “Where congressional intent is

ambiguous, . . . an agency’s interpretation of a statute

entrusted to its administration is entitled to deference, so long

as it is reasonable.” Shell Oil Co. v. EPA, 950 F.2d 741, 747

(D.C. Cir. 1992) (per curiam) (citing Chevron U.S.A. Inc. v.

Natural Resources D-fense Council, Inc., 467 U.S. 837, 842-

43 (1984)). Our primary concern under Chevron is to ensure

that an agency acts within the bounds of congressional

delegation. “[A]s long as the agency stays within

[Congress’] delegation, it is free to make policy choices in

interpreting the statute, and such ‘interpretations are entitled

to deference.” Arent v. Shalala, 70 F.3d 610, 615 (D.C. Cir.

1995S).

In evaluating the extent of congressional delegation, a

reviewing court first exhausts the traditional tools of statutory

construction to determine whether a congressional act admits

of plain meaning. See Bell Atlantic Tel. Cos. v. FCC, 131

F.3d 1044, 1047 (D.C. Cir. 1997). If, in light of its text,

legislative history, structure, and purpose, a statute is found

to be plain in its meaning, “then Congress has expressed its

intention as to the question, and deference is not

appropriate.” /d. If congressional intent is ambiguous, then

we move to the second step of the Chevron analysis, and

uphold an agency’s interpretation if it is reasonable. The

reasonableness prong includes an inquiry into whether the

agency reasonably filled a gap in the statute left by Congress.

See United Techs. Corp. v. EPA, 821 F.2d 714, 723 (D.C.

lla

Cir. 1987) (upholding filling of gap that is rational and “not

inconsistent” with amendments to the Resource Conservation

and Recovery Act of 1976).

A. Express Delegation of Authority to Native American

Nations

It is undisputed that Native American nations retain

significant sovereign power. Native American nations have

inherent power to determine forms of tribal government, to

determine tribal membership, to make substantive criminal

and civil laws governing internal matters, to administer tribal

judicial systems, to exclude others from tribal lands, and, to

some extent, to exercise civil jurisdiction over nonmembers,

including non-Indians. See Cohen, Handbook of Federal

Indian Law, at 247-53; Montana v. United States, 450 U.S.

544, 564 (1981). It is this last category of power that is at

issue in the instant case, because petitioners claim that the

1990 Amendments to the Act do not authorize tribes to

administer the Act over fee land within a reservation that is

owned by nonmembers. As the Supreme Court has held,

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.

Montana, 450 U:S. at 564.

There is no doubt that tribes hold “inherent sovereign

power to exercise some forms of civil jurisdiction over non-

Indians on their reservations, even on non-Indian fee lands.”

Id. at 565. For instance, if the behavior of non-Indians on fee

lands within the reservation “threatens or has some direct

12a

etfect on the political integrity, the economic security, or the

health or welfare of the tribe,” the tribe may regulate that

activity. /d. at 566. To satisfy this standard, however, a tribe

must show, on a case-by-case basis, that the disputed activity

constitutes a “demonstrably serious” impact that “imperil[s]

the political integrity, the economic security, or the health

and welfare of the tribe.” Brendale v. Confederated Tribes

and Bands of the Yakima Indian Nation, 492 U.S. 408, 431

(1989) (plurality opinion). EPA suggests, not implausibly,

that “inherent sovereign power” may apply to tribal

regulation under the Act of fee lands within a reservation, see

Proposed Tribal Authority Rule, 59 Fed. Reg. at 43,598 n.5,

but the Agency does not press this argument on appeal.

Rather, EPA contends that the 1990 Amendments constitute

an express congressional delegation to the tribes of the

authority to regulate air quality on fee lands located within

the exterior boundaries of a reservation.

“There are few examples of congressional delegation of

authority to tribes.” Cohen, Handbook of Federal Indian

Law, at 253. However, as is the case in any situation in

which we are called upon to find congressional intent in

construing a contested statute, we start with traditional

sources of statutory interpretation, including the statute’s

text, structure, purpose, and legislative history. See, e.g.,

Block v. Community Nutrition Inst., 467 U.S. 340, 345 (1984)

(“Whether and to what extent a particular statute precludes

judicial review is determined not only from its express

language, but also from the structure of the statutory scheme,

its objectives, its legislative history, and the nature of the

administrative action involved.”). Our review of the CAA

indicates that EPA’s interpretation comports with

congressional intent.

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Section 7601(d), in pertinent part, authorizes EPA to treat

otherwise eligible tribes as states if “the functions to be

exercised by the Indian tribe pertain to the management and

protection of air resources within the exterior boundaries of

the reservation or other areas within the tribe’s jurisdiction.”

42 U.S.C. § 7601(d)(2)(B). The statute’s clear distinction

between areas “within the exterior boundaries of the

reservation” and “other areas within the tribe’s jurisdiction”

carries with it the implication that Congress considered the

areas within the exterior boundaries of a tribe’s reservation to

be per se within the tribe’s jurisdiction. Thus, EPA correctly

interpreted § 7601(d) to express congressional intent to grant

tribal jurisdiction over nonmember owned fee land within a

reservation without the need to determine, on a case-specific

basis, whether a tribe possesses “inherent sovereign power”

under Montana.

Petitioners do not dispute that an important purpose of

the Act is to ensure effective enforcement of clean air

standards. Obviously, this is best done by allowing states

and tribes to establish uniform standards within their

boundaries. As EPA explained in its proposed rule,

[aJir pollutants disperse over areas several and

sometimes even hundreds of miles from their source

of origin, as dictated by the physical and chemical

properties of the pollutants at issue and the prevailing

winds and other meteorological conditions. The high

mobility of air pollutants, resulting areawide effects

and the seriousness of such impacts, underscores the

undesirability of fragmented air quality management

within reservations.

Proposed Tribal Authority Rule, 59 Fed. Reg. at 43,959.

l4a

——— Tt... -

Accepting petitioners’ interpretation of the 1990

Amendments would result in a “checkerboard” pattern of

regulation within a reservation’s boundaries that would be

inconsistent with the purpose and provisions of the Act.

Indeed, the Supreme Court has condemned such an approach.

See Moe v. Confederated Salish and Kootenai Tribes of

Flathead Reservation, 425 U.S. 463, 479 (1976) (rejecting

checkerboard approach in interpreting § 6 of the General

Allotment Act, 25 U.S.C. § 349); Seymour v. Superintendent

of Washington State Penitentiary, 368 U.S. 351, 358 (1962)

(terming “impractical” a pattern of checkerboard jurisdiction

under 18 U.S.C. § 1151).

Finally, we note that the legislative history of the 1990

Amendments supports EPA’s interpretation. As originally

introduced, 42 U.S.C. § 7601(d) differed in significant

respect from the final adopted version. The original

§ 7601(d)(2)(B) provided that treatment of tribes as states

was authorized if “the functions to be exercised by the Indian

tribe are within the area of the tribal government's

Jurisdiction.” §. 1630, 101st Cong. § 113(a) (1990),

reprinted in Senate Comm. On Env’t and Pub. Works, 103D

Cong., Legislative History of the Clean Air Act Amendments

of 1990, at 4283 (1993) (emphasis added); see also H.R.

2323, 101" Cong. § 604 (1989), reprinted in Legislative

History of the Clean Air Act Amendments of 1990, at 4101.

The statute as finally enacted, however, treats tribes and

states as equivalent if the tribe is to exercise functions

“within the exterior boundaries of the reservation or other

areas within the tribe’s jurisdiction.” 42 U.S.C.

§ 7601(d)(2)(B).

Thus, Congress moved from authorizing tribal regulation

over the areas “within the tribal government’s jurisdiction” |

(an admittedly general category) to a bifurcated classification |

—— lr

15a

of all areas within “the exterior boundaries of the

reservation” and “other areas within the tribe’s jurisdiction.”

This change strongly suggests that Congress viewed all areas

within “the exterior boundaries of the reservation” to be

“within the area of the tribal government’s jurisdiction.” The

change also indicates that Congress knew how to draft the

1990 Amendments to support petitioners’ interpretation. The

fact that Congress specifically rejected language favorable to

petitioners’ position and enacted instead language that is

consistent with EPA’s interpretation only strengthens our

conclusion that the Agency has correctly ascertained

Congress’ intent in passing the 1990 Amendments.

The dissent’s contrary contentions regarding the meaning

of the 1990 Amendments do not cause us to question this

conclusion. The dissent’s argument that Congress would not

use a “never-before-attempted” formulation to accomplish an

express delegation when it could use the “formulaic

‘notwithstanding’ proviso [used in § 7410(0)]—the gold

standard for such delegations,” cannot carry much weight.

Dissent Op. ai 5-6. That a provision uses a new formulation

is not dispositive of the question as to whether it constitutes

an express delegation. Indeed, it is noteworthy that, in

construing 33 U.S.C. § 1337(h)(1), which uses the disseut’s

so-called “gold standard,” EPA has declined to find an

express delegation in such language. We can assume that

Congress was aware of EPA’s contemporaneous

interpretation of the Clean Water Act, first proposed in 1989

(while Congress contemplated the 1990 Amendments). See

Amendments to the Water Quality Standards Regulations

That Pertain to Standards on Indian Reservations, 54 Fed.

Reg. 39,098, 39,101 (1989) (proposed Sept. 22, 1989) (to be

codified at 40 C.F.R. pt. 131) (“EPA may treat an Indian

Tribe as a State . . . only where the Tribe already possesses

and can adequately demonstrate authority to manage and

l6a

protect water resources within the borders of the reservation.

The Clean Water Act . . . does not grant additional authority

to Tribes.”). Thus, Congress’ failure to use the same

language in § 7601(d) does not at all imply that it meant to

avoid delegation to the tribes; rather, it may suggest just the

opposite.

The dissent’s argument resting on Congress’ omission of

a “literal delegation” to tribes is seductive, but, ultimately,

also unconvincing. It is true that, as originaliy introduced,

the bills in the Senate and the House contained language

providing that “the Administrator . . . may delegate to [ |

iribes [that the Administrator is authorized to treat as States]

primary responsibility for assuring air quality and

enforcement of air pollution control.” H.R. 2323, 101st

Cong. § 604 (1989), reprinted in Legislative History of the

Clean Air Act Amendments of 1990, at 4101. The absence

of this language from the final bill, however, does not compel

the dissent’s conclusion that Congress “specifically rejected”

language favorable to EPA’s position. Neither the majority

nor the dissent can call upon determinative legislative history

to illuminate the motivations behind this unexplained change

to the provisions at issue. We suggest, however, that there

are at least two other expianations that account for the

absence of the cited language from the final bill. First,

Congress simply may have deemed the language to be

redundant and confusing in light of § 7601(d)(2)(B). It

would have been redundant because § 7601(d)(2)(B) already

accomplishes an express delegation. It would have been

confusing because the omitted language can be read to apply

to areas both outside and inside the boundaries of the

reservation, and, as we hold, Congress intended to expressly

delegate only with respect to areas within the boundaries of a

reservation.

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17a

Second, the language contained in the original bills

hardly represents, as the dissent declares ipse dixit, a “literal

delegation.” Providing that the “Administrator . . . may

delegate” authority to tribes reads less like an express

delegation from Congress to the tribes than a permissive

instruction to the Administrator. Moreover, the omitted

language did not expressly expand tribal jurisdiction to

include those areas within the boundaries of a reservation

owned by non-members—which is what is necessary for

express delegation—as does the language in the adopted

§ 7601(d)(2)(B). In other words, the language used in the

progenitors to § 7601(d) that the dissent claims is a “literal

delegation” is not easily manipulated to fit the contours of the

traditional express delegation inquiry. We also note, as an

aside, that by treating the original bills’ language as an

express delegation, our colleague seemingly abandons the

“gold standard” that he claims Congress consistently has

utilized expressly to delegate authority to Indian tribes. In

short, we take more from the language used in the adopted

§ 7601(d)(2)(B) than from the language omitted.

What little precedent there is addressing express

delegations of authority to Native American nations in other

contexts supports our interpretation of § 7601(d). In United

States v. Mazurie, the Supreme Court reviewed 18 U.S.C.

§ 1161 and concluded that the statute was an express

delegation to tribes of the authority to regulate alcohol

transactions. 419 U.S. 544, 556-57 (1975). The Court

reaffirmed this holding almost a decade later. See Rice v.

Rehner, 463 U.S. 713, 728-29 (1983). Section 1161 provides

in pertinent part that various federal! liquor laws applicable to

transactions within Indian country shall not apply

within any area of Indian country provided such act or

transaction is in conformity both with the laws of the

l8a

State in which such act or transaction occurs and with

an ordinance duly adopted by the tribe having

jurisdiction over such area of Indian country, certified

by the Secretary of the Interior, and published in the

Federal Register.

18 U.S.C. § 1161 (1994). The Court read this language to

make

clear that Congress contemplated that its absolute but

not exclusive power to regulate Indian liquor

transactions would be delegated to the tribes

themselves, and to the States, which historically

shared concurrent jurisdiction with the Federal

Government in this area.

Rehner, 463 U.S. at 728-29.

The decisions in Mazurie and Rehner are significant

because the Court found an express delegation despite the

absence of any “we hereby delegate” language in the statute.

The Court did not find any precise language of delegation in

the disputed statute, but, rather, rested on the implication

inherent in recognizing the power of tribes to adopt an

ordinance pertinent to liquor transactions on Indian country.

See Rehner, 463 U.S. at 730-31. Similarly, in this case, we

find an express congressional delegation from the implication

inherent in the distinction between areas “within the exterior

boundaries of the reservation” and “other areas within the

tribe's jurisdiction.”

Petitioners claim that the 1990 Amendments delegate

authority to EPA to approve state or tribal air quality

programs for federal enforcement, not authority to tribes to

“adopt regulatory programs that the tribes could not adopt

ee ee es ee ee ee

19a

under tribal and federal Indian law prior to the 1960

Amendments.” Br. for Petitioners National Ass’n of Mfrs.

(“NAM”) at 23. Petitioners’ claim misses a crucial point,

however, that there are two different powers at issue here: (1)

the authority to regulate and (2) the derivative authority to

enforce specific provisions of the Act. Petitioners focus on

the derivative authority. Of course the 1990 Amendments do

not constitute an express delegation to the tribes to enact

regulatory provisions absent any federal oversight or

approval. Rather, the 1990 Amendments simply establish the

palette with which tribes are permitted to paint their

regulatory picture.

Petitioners additionally argue that although states are

authorized under 42 U.S.C. § 7407(a) to enact programs

“within the entire geographic area comprising such State,”

EPA has never interpreted this provision as allowing states to

promulgate air quality regulations applicable to Native

American reservations located within a state’s geographic

area. In other words, petitioners claim that because states

may not promulgate regulations affecting Native American

reservations, tribes may not promulgate regulations covering

lands held in fee by persons other than tribal members. This

argument is obviously flawed, because it fails to recognize

that the relationship between fee holders and tribes is quite

different from the relationship between tribes and states. As

the Supreme Court noted in Mazurie,

Indian tribes are unique aggregations possessing

attributes of sovereignty over both their members and

their territory; they are “a separate people” possessing

“the power of regulating their internal and social

relations ... .”

419 U.S. at 557 (citations omitted). And there is no doubt

20a

that Congress may delegate authority to tribes “even though

the lands [are] held in fee by non-Indians, and even though

the persons regulated [are] non-Indians.” /d. at 554.

Finally, petitioners note that the Agency declined to find

an express delegation of power to regulate fee lands under

§§ 518(e) and (h) of the Clean Water Act; this is noteworthy

to petitioners, because they can glean no difference between

the cited provisions under the Clean Water Act and the

disputed provisions in this case under the Clean Air Act. We

find no merit in this argument. The Clean Water Act states

that “[t}he Administrator is authorized to treat an Indian tribe

as a State... if... the functions to be exercised by the

Indian tribe pertain to the management and protection of

water resources which are held by an Indian tribe . . . within

the borders of an Indian reservation.” 33 U.S.C. § 1377(e)(2)

(1994). “Reservation” is defined as “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.” Id. § 1377(h)(1). In construing these

provisions, EPA concluded that because the legislative

history was “ambiguous and inconclusive,” it would not find

that the Clean Water Act expanded or limited the scope of

tribal authority beyond that inherent in_ the tribe.

Amendments to the Water Quality Standards Regulation That

Pertain to Standards on Indian Reservations, 56 Fed. Reg.

64,876, 64,880 (1991) (codified at 40 C.F.R. pt. 131).

The situation here is quite different from what EPA found

with respect to the Clean Water Act. Although the disputed

language in the Clean Air Act and the Clean Water Act is

somewhat similar, it is far from identical. As noted above,

EPA correctly relied on the CAA’s clear distinction between

areas “within the exterior boundaries of the reservation” and

2la

“other areas within the tribe’s jurisdiction” to find a

congressional intention to define the areas within the exterior

boundaries of a tribe’s reservation to be per se within the

tribe’s jurisdiction. Furthermore, as we have already

indicated, the legislative history of the 1990 Amendments

plainly supports EPA’s interpretation. Thus, the legislative

history underlying the Clean Air Act is not “ambiguous and

inconclusive,” as was found to be the case with respect to the

Clean Water Act.

It is also of some significance that EPA’s interpretation of

the Clean Water Act never has been subject to judicial review

on the question of the presence or absence of an express

delegation to tribes to regulate fee lands within the bounds of

reservations. One federal court has observed, in dicta, that

“the statutory language [in the Clean Water Act] seems to

indicate plainly that Congress did intend to delegate...

authority to tribes.” State of Montana v. EPA, 941 F. Supp.

945, 951 (D. Mont. 1996). The court noted, however, that in

construing the provisions of the Clean Water Act, “EPA

determined that it would take the more cautious view, that

Congress did not expressly delegate jurisdiction to tribes over

non-Indians and that tribes would have to prove on a case-by-

case basis that they possess such jurisdiction.” Jd at 952.

There was no reason for EPA to take a similarly “cautious

view” with respect to the Clean Air Act, because the

language and legislative history of the 1990 Amendments

differ from that of the Clean Water Act.

B. EPA's Interpretation of “Reservation”

Given that EPA correctly interpreted § 7601(d) to

expressly delegate jurisdiction to otherwise eligible tribes

over all land within the exterior boundaries of reservations,

including fee land, the next question is what areas are

22a

covered by a “reservation.” EPA interprets “reservation” as

used in three different statutory provisions (42 U.S.C.

§§ 7410(0), 7474(c), 7601(d)\(2)(B)) to mean _ formally

designated reservations as well as “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.” Tribal

Authority Rule, 63 Fed. Reg. at 7258. This includes what

EPA terms “Pueblos” and tribal trust land. Pueblos are

villages, primarily located in New Mexico, held by tribes in

communal fee-simple ownership, originally acquired under

grants from Spain and Mexico, and confirmed by Congress in

the late 1800s. See United States v. Sandoval, 231 U.S. 28,

38-39 (1913). Petitioners ignore the status of Pueblos and

concentrate their attack on EPA’s interpretation of

“reservation” to include tribal trust land.

The Secretary of the Interior is authorized to acquire land

in trust for a tribe under 25 U.S.C. § 465 (1994), and such

land can only formally be designated a reservation via the

process provided by 25 U.S.C. § 467 (1994). Petitioners

claim that EPA’s interpretation contravenes the Act’s plain

language and renders 25 U.S.C. § 467 superfluous by

ignoring the distinction between “trust lands” and

“reservations.” EPA counters that the statute is ambiguous,

and that its reasonable interpretation is entitled to Chevron

deference.

We start with Chevron step one and rely on traditional

principles of statutory construction to determine whether

EPA’s interpretation contravenes congressional intent as

manifested by the 1990 Amendments. Significantly, the Act

nowhere defines “reservation.” Therefore, we look to the

term’s ordinary and natural meaning, and the context in

which the term is used. See Smith v. United States, 508 '5.S.

223, 228-30 (1993). And we must remain cognizant of the

ve) eS?

23a

rule that courts construe federal statutes liberally to benefit

Native American nations. See Montana v. Blackfeet Tribe of

Indians, 471 U.S. 759, 766 (1985).

The dictionary defines “reservation” to be a “tract of

public land set aside for a particular purpose (as schools,

forest, or the use of Indians).”” WEBSTER’S THIRD NEw INT’L

DICTIONARY 1930 (1993). This definition surely

encompasses both trust lands and formally designated

reservations. Nothing in the United States Code is clearly to

the contrary, for the term “reservation” has no rigid meaning

as suggested by petitioners. See 7 U.S.C. § 1985(e)(1)(A)(ii)

(Supp. IV 1998) (defining “reservation” to include land

“within the limits of any Indian reservation under the

jurisdiction of the United States, . . . trust or restricted land

located within the boundaries of a former reservation of a

federally recognized Indian tribe in the State of Oklahomaf,]

.. . [and] all Indian allotments the Indian titles to which have

not been extinguished if such allotments are subject to the

jurisdiction of a federally recognized Indian tribe”); id.

§2012G) (1994) (defining “reservation” as “the

geographically defined area or areas over which a tribal

organization . . . exercises governmental jurisdiction”); 25

U.S.C. § 1452(d) (1994) (defining “reservation” to include

Indian reservations, public domain Indian aliotments, former

Indian reservations in Oklahoma, and land held by

incorporated Native groups, regional corporations, and

village corporations under the provisions of the Alaska

Native Claims Settlement Act); id § 1903(10) (1994)

(defining “reservation” to be “Indian country as defined in

section 1151 of Title 18” and any trust land not encompassed

by § 1151); id. § 3103(12) (1994) (“*[R]eservation’ includes

Indian reservations established pursuant to treaties, Acts of

Congress or Executive orders, public domain Indian

allotments, and former Indian reservations in Oklahoma”); 33

24a

U.S.C. § 1377(h)(1) (defining “Federal Indian reservation” to

mean “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”).

These varying definitions of “reservation” lay to waste

petitioners’ argument. Petitioners appear to assert that, in the

absence of any specific definition, “reservation” as used in

the 1990 Amendments to the Act can only mean the formal

reservation contemplated by 25 U.S.C. § 467. This is a

specious contention. First, § 467 does not purport to offer an

exclusive definition of “reservation”; it simply defines the

terms under which federal land is formally designated a

reservation. Second, if Congress had wanted to limit the

term “reservation” as petitioners suggest, Congress could

have done so. Indeed, Congress on many occasions has

defined “reservation” in terms of other statutes. See 12

U.S.C. § 4702(11) (1994) (defining “reservation” according

to 25 U.S.C. § 1903(10)); 22 U.S.C. § 2124c(m)(1) (1994)

(defining “Indian reservation” with reference to 25 U.S.C.

§ 1452(d)); 25 U.S.C. § 1903(10) (defining “reservation”

with reference to 18 U.S.C. § 1151, as well as trust land); 26

U.S.C. § 168(4)(6) (1994 & Supp. III 1997) (defining “Indian

reservation” with reference to 25 U.S.C. § 1452(d) and 25

U.S.C. § 1903(10)); 42 U.S.C. § 10101(19) (1994) (defining

“reservation” to include communities referred to in 18 U.S.C.

§ 1151(a), (b)); id. § 11332(a)(1994) (defining “reservation”

according to 25 U.S.C. § 1452(d)). Moreover, given the

varying definitions of the term used throughout the Code, it

would be a curious result indeed for this court to insist that

the absence of a definition requires EPA to advance the most

restrictive definition as put forth by petitioners.

25a

Aside from the statute’s plain meaning and its context,

other sources of statutory interpretation offer no insight into

congressional intent with respect to the meaning of

“reservation.” The Report of the Senate Committee on

Environment and Public Works refers to the authority of

Indian tribes to “administer and enforce the Clean Air Act in

Indian lands,” as well as enforcement of the Act in “Indian

country.” S. Rep. No. 101-228, at 79, 80 (1989), reprinted in

LEGISLATIVE HISTORY OF THE CLEAN AIR ACT AMENDMENTS

of 1990, at 8419-20. These terms are arguably broader than

the definition of “reservation” urged by petitioners, and

simply confirm the term’s ambiguity as used by Congress.

Accordingly, we turn to step two of the Chevron inquiry.

That is, did the Agency reasonably interpret the term

“reservation” to include formal reservations, Pueblos, and

trust lands? EPA 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. See Oklahoma Tax Comm'n, 498

U.S. at 511. This view is consonant with other federal court

holdings that an Indian reservation includes trust lands. See

United States v. John, 437 U.S. 634, 649 (1978) (finding “no

apparent reason” why lands held in trust should not be

considered a “reservation” under §1151(a)); HRI. Inc. v.

EPA, 198 F.3d 1224, 1249-54 (10th Cir. 2000) (same):

United States v. Azure, 801 F.2d 336, 339 (8th Cir. 1986)

(considering tribal trust land to be Indian country under either

§ 1151(a) as a “de facto” reservation or §1151(b) as a

dependent Indian community); United States v. Sohappy, 770

F.2d 816, 822-23 (9th Cir. 1985) (holding that trust land is a

“reservation” under § 1151(a)).

26a

Petitioners note that, for several years, EPA has defined

reservation, for the purposes of the PSD program, to be “any

federally recognized reservation established by Treaty,

Agreement, executive order, or act of Congress.” 40 C.F.R.

§2.21(b)(27) (1999). Given the Agency’s reasoned

justification for a broader definition of “reservation” in the

Tribal Authority Rule, and its proposal to amend the PSD

definition to ensure consistency with the Tribal Authority

Rule, EPA’s departure from the PSD definition does not

preclude this court from upholding EPA’s new definition. In

light of the ample precedent treating trust land as reservation

land in other contexts, and the canon of statutory

interpretation calling for statutes to be interpreted favorably

towards Native American nations, we cannot condemn as

unreasonable EPA’s interpretation of “reservations” to

include Pueblos and tribal trust land.

C. Areas over which Tribes May Exercise Jurisdiction to

Propose TIPs and Redesignations

The next issue that arises in this case is whether EPA

defensibly interprets the extent of Native American authority

to redesignate geographic areas and propose TIPs under the

Act. Native American nations are authorized to redesignate

“[l]ands within the exterior boundaries of reservations of

federally recognized Indian tribes.” 42 U.S.C. § 7474(c).

Similarly, Indian tribes may submit TIPs “applicable to all

areas . . . located within the exterior boundaries of the

reservation, notwithstanding the issuance of any patent and

including rights-of-way running through the reservation.” 42

U.S.C. § 7410(0).

EPA interpreted both of these provisions to authorize

tribal redesignation and implementation of TIPs not just

within the limits of reservations (including trust lands and

27a

Pueblos), but also within allotted lands and dependent Indian

communities. No one argues that allotted Jands and

dependent Indian communities are within the compass of a

“reservation.” Instead, EPA contends that so long as a tribe

demonstrates inherent jurisdiction over non-reservation areas,

it may issue redesignations and TIPs for those lands. In other

words, although tribes do not have express delegated

authority to issue redesignations and TIPs for non-reservation

areas, neither does the Act bar tribes from acting on a Case-

by-case basis pursuant to demonstrated inherent sovereign

power.

Petitioners contend that both § 7474(c) and 7410(0)

operate as geographical limitations on the power of tribes to

redesignate areas and issue TIPs. Petitioners’ argument with

respect to § 7474(c) falls flat. This provision says that

“[l]Jands within the exterior boundaries of reservations of

federally recognized Indian tribes may be redesignated only

by the appropriate Indian governing body.” 42 U.S.C.

§ 7474(c). Petitioners seek to twist this language into the

following: “Indian tribes may only redesignate lands within

the exterior boundaries of reservations.” All § 7474(c)

establishes, however, 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.

Nor do petitioners fare better with respect to § 7410(o),

which states that EPA-approved TIPs “shall become

applicable to all areas (except as expressly provided

otherwise in the plan) located within the exterior boundaries

of the reservation, notwithstanding ile issuance of any patent

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

42 U.S.C. § 7410(0). Petitioners read this to mean that EPA

may only approve a TIP if it applies within reservation areas.

28a

As EPA points out, petitioners’ interpretation cannot stand

for several reasons. First, § 7410(0) cross-references

§ 7601(d), which allows for tribes to exercise jurisdiction

over reservation areas or “other areas within the tribe's

jurisdiction.” 42 U.S.C. § 7601(d)(2)(B). Most importantly,

§ 7410(0) provides that TIPs apply to all areas within the

borders of a reservation once the plan “becomes effective in

accordance with the regulations promulgated under section

7601(d) of this title.” 42 U.S.C. § 7410(0). Therefore, it is

permissible for EPA to give § 7410(o) the reading it proffers:

a reinforcement of tribes’ jurisdiction to implement TIPs in

reservation land. Petitioners would instead read the statute as

an express limitation of tribal jurisdiction. Under step one of

Chevron, we cannot say that congressional intent is free of

ambiguity on this question.

Accordingly, we turn to whether EPA’s interpretation is

reasonable. We believe that it is undoubtedly so. To read the

statute otherwise would result in several anomalies. First,

EPA notes without dispute that petitioners’ interpretation

would allow a state’s implementation plan to apply to non-

reservation areas, even where a tribe has demonstrated

inherent jurisdiction over those areas. Second, petitioners’

reading would disable a tribe from comprehensively

administering the Act. A tribe could implement, in non-

reservation areas, new source performance standards under

the Act, but not administer a TIP, even though the regulated

activity “threatens or has some direct effect on the .. . health

or welfare of the tribe.” Montana, 450 U.S. at 566. EPA’s

reading of the statute to allow such regulation is a reasonable

interpretation of §§ 7410(0) and 7601(d).

29a

D. The Right of The Public To Comment on Tribal

Applications to Regulate

EPA's final rule limited the opportunity of the public to

comment directly to the Agency on “competing claims over

tribes’ reservation boundary assertions and assertions of

jurisdiction over non-reservation areas,” allowing only

“appropriate governmental entities” to submit comments.

Tribal Authority Rule, 63 Fed. Reg. at 7267. Petitioners

challenge this limitation of the public’s opportunity to

comment directly to EPA. Before this court, however, EPA

indicated its intent to clarify that the Agency will accept

comments directly from all commenters on the determination

of a tribe's eligibility to be treated as a state. See Br. for

Respondent at 43. Subsequently, EPA issued a clarification

to this effect. See Indian Tribes: Air Quality Planning and

Management, 65 Fed. Reg. 1322, 1323 (2000).

Therefore, this issue is moot. See Motor & Equip. Mfrs.

Ass'n v. Nichols, 142 F.3d 449, 458 (D.C. Cir. 1998) (finding

challenge to EPA’s waiver for state’s program was moot

where actions complained of were revised after lawsuit was

filed). A dispute may be rendered moot where the

complained of conduct has been voluntarily discontinued if

“(1) there is no reasonable expectation that the conduct will

recur and (2) ‘interim relief or events have compietely and

irrevocably eradicated the effects of the alleged violation.””

Id. at 459 (quoting County of Los Angeles v. Davis, 440 U.S.

625, 631 (1979)). In this case, there is no indication that

EPA will revert to its past proposal only to receive direct

comments from “appropriate governmental units,” and all of

the adverse effects of the Agency’s alleged illegal action

have been remedied by EPA’s clarification.

30a

E. Abrogation of Existing Agreements By Tribes Not to

Regulate Certain Land

Petitioners argue that EPA’s final rule abrogates

preexisting agreements by Native American nations not to

regulate certain individual parties. Specifically, petitioner

APS points to its 1960 lease with the Navajo Nation that APS

claims prohibits the Nation from regulating the operation of

the Four Corners Power Plant. See Br. of Petitioner APS at

2. APS further claims that the Secretary of the Interior

covenanted to protect APS from tribal regulation. See id. at

:

Petitioners point to footnote 5 in the final rule which

states, in response to industry comments that preexisting

agreements may limit the extent of a tribe’s regulatory

jurisdiction, that “EPA believes that the CAA generally

would supersede pre-existing treaties or binding agreements

that may limit the scope of tribal authority over reservations. ”

Tribal Authority Rule, 63 Fed. Reg. at 7256 n.5. Petitioners

ignore the sentence following footnote 5, however, in which

EPA states that it “will consider on a case-by-case basis

whether special circumstances exist that would prevent a

tribe from implementing a CAA _ program over its

reservation.” Jd. at 7256 (emphasis added). EPA maintains

in its brief that it has made no judgment on the scope and

effect of the specific agreements to which petitioners refer,

and that it will consider such questions as they arise. As

counsel for APS acknowlgdged at oral argument, it is quite

possible that the abrogation issue never will arise. For

instance, if the Navajo Nation agrees that it will not regulate

the Four Corners Plant, there will be no controversy in need

of resolution.

3la

There is still a concern, however. In EPA’s preamble to a

proposed federal implementation plan, promulgated after the

Tribal Authority Rule, the Agency stated that,

[u]pon review of the circumstances surrounding the

location and operation of [the Four Corners Power

Plant} on the Navajo Indian Reservation, EPA

concluded that jurisdiction under the Act over this

facility lies with EPA and the Navajo Nation.

64 Fed. Reg. 48,731, 48,732 (1999); see also 64 Fed. Reg.

48,725, 48,726 (1999) (taking same position with respect to

the Navajo Generating Station). EPA now acknowledges

that, to the extent these preambles imply that the Agency has

determined that the indicated plants are subject to regulation

by the Navajo Nation, these statements were incorrect. See

Supp. Br. of Respondent at 4. In fact, EPA has confirmed

this position by publishing an official notice in the Federal

Register clearly indicating that it has not yet determined

whether the Navajo Nation my regulate the indicated power

plants under the Act. See id. at 4-5.

This issue, therefore, is not ripe for review before this

court. The ripeness doctrine seeks to balance institutional

interests in delaying review against litigants’ interests in

promptly reviewing allegedly unlawful government actions.

See Florida Power & Light Co. v. EPA, 145 F.3d 1414.

1420—21 (D.C. Cir. 1998). First a court must ask if the

disputed issues are fit for judicial review. See Abbot Labs. v.

Gardner, 387 U.S. 136, 149 (1967). If the institutional

interests of the agency or reviewing court favor postponing

review, then a party must demonstrate “hardship” in order to

show that the issue should nonetheless be made subject to

judicial review. See City of Houston v. HUD, 24 F.3d 1421,

1431 (D.C. Cir. 1994).

32a

The fitness inquiry asks if a case “presents a concrete

legal dispute [and] no further factual development is essential

to clarify the issues . . . [and] there is no doubt whatever that

the challenged [agency] practice has “crystallized”

sufficiently for purposes of judicial review.” Rio Grande

Pipeline Co. v. FERC, 178 F.3d 533, 540 (D.C. Cir. 1999)

(quoting Payne Enters., Inc. v. United States, 837 F.2d 486,

492-93 (D.C. Cir. 1988)) (alterations in original). Here,

petitioners cannot satisfy this prong because EPA has not

issued any order relating to the preexisting covenants

prohibiting regulation by Native American nations. See

Florida Power & Light, 145 F.3d at 1421 (finding lack of

fitness for review where it was unclear “whether, or on what

grounds, EPA would even apply” the challenged rule to

petitioners).

Additionally, petitioners cannot point to any hardship

they would suffer from deferred judicial review. It is

axiomatic that mere delay, absent other extenuating

circumstances, in adjudication of a dispute cannot satisfy the

hardship prong. See Clean Air Implementation Project v.

EPA, 150 F.3d 1200, 1205-06 (D.C. Cir. 1998); Florida

Power & Light, 145 F.3d at 1421 (burden of participating in

further proceedings does not constitute a hardship).

Contrary to petitioners’ argument, this case is not on all

fours with Better Government Association v. Department of

State, 780 F.2d 86 (D.C. Cir. 1986). In Better Government,

petitioners challenged Department of Justice regulations

applied by the Department of State and the Department of the

Interior to evaluate fee waiver applications for Freedom of

Information Act requests. The court found that the claim was

ripe for review because the departments relied on the

Department of Justice guidelines, and the government agreed

that the regulations “govern| | and will continue to govern its

33a

decisions.” /d at 93. Here, EPA has made no decision that

will govern its analysis of whether the preexisting

agreements are abrogated by its interpretation of the Act.

Until the Agency takes a position on the enforceability of the

covenants not to regulate, there is no concrete issue for this

court to consider.

F. Judicial Review of Tribal Permitting Programs

Under Title V of the Act, states must develop a

comprehensive permitting program applicable to major air

pollution sources. See 42 U.S.C. § 766la. Section 766la

enunciates the requirements for administering permitting

programs, including elements of judicial review. Pursuant to

§ 7661a,

[t}hese elements shall include . . .

(6) Adequate, streamlined, and reasonable procedures

for . . . expeditious review of permit actions, .. .

including an opportunity for judicial review in State

court of the final permit action... .

(7) To ensure against unreasonable delay by the

permitting authority, adequate authority and

procedures to provide that a failure of such permitting

authority to act on a permit application or permit

renewal application . . . shall be treated as a final

permit action solely for purposes of obtaining judicial

review in State court of an action brought by any

person referred to in paragraph (6) to require that

action be taken by the permitting authority on such

application without additional delay.

Id § 7661a(b)(6), (7).

34a

EPA initially proposed that tribes “will have to meet the

same requirements” as states in providing an opportunity for

judicial review of a final permit action. Proposed Tribal

Authority Rule, 59 Fed. Reg. at 43,972. EPA withdrew this

proposal in its final rule. Instead, EPA required tribes to

meet all the requirements of § 7661a(b)(6) and (7) except that

review of a tribe’s Title V permitting program need not be

“judicial” or “in State court.” See Tribal Authority Rule, 63

Fed. Reg. at 7261. Petitioners present two challenges to the

final rule on judicial review: (1) that EPA had no authority to

exempt tribes from the Act's judicial review requirements;

and (2) that interested parties received insufficient notice of

the final rule’s content.

EPA promulgated its final rule in response to comments

that expressed concern over “waivers of tnbal sovereign

immunity to judicial review.” /d Some Native American

representatives observed that requiring a waiver of sovereign

immunity for a tribe to administer a Title V permit program

would operate as a disincentive to a tribe's establishing such

programs. Industry commenters also sought assurances that

nonmembers of tribes would have access to tribal courts for

judicial review.

EPA identified two alternatives for ensuring that “some

form of citizen recourse be available for applicants and other

persons affected by permits issued under tribal Title V

programs.” /d One option was for tribes to voluntarily

waive their sovereign immunity in tribal courts. A second

possibility was for the Agency to consider “alternative

options . . . that would not require tribes to waive their

sovereign immunity to judicial review but, at the same time,

would provide for an avenue for appeal of tribal government

action or inaction to an independent review body and for

injunctive-type relief to which the Tribe would agree to be

35a

bound.” /d at 7262. EPA interpreted 42 U.S.C. § 7601(d) to

“provide[ | EPA with the discretion to balance the goals of

ensuring meaningful opportunities for public participation

under the CAA and avoiding undue interference with tribal

sovereignty when determining those provisions for which it

is appropriate to treat tribes in the same manner as states.”

Id

Section 7601(d) authorizes EPA to treat Native American

nations as states for the purposes of the Act. However, if

EPA determines “that the treatment of Indian tribes as

identical to states is inappropriate or administratively

infeasible, the Administrator may provide, by regulation,

other means by which the Administrator will directly

administer such provisions so as to achieve the appropriate

purpose.” 42 U.S.C. § 7601(d)(4). EPA relies on this

Statutory provision to justify the approach taken on judicial

review.

Petitioners argue that EPA lacks authority to exempt

tribes from the judicial review requirements, because

§ 7601(d) does not affect the operation of CAA provisions

“that define rights that must be afforded to those affected by

a program in order [for either a tribe or a State] to receive

EPA approval to administer a federally enforceable

program.” Br. for Petitioners NAM at 42. We see no merit

in this claim. EPA’s interpretation is not clearly contradicted

by the statute. In fact, § 7601(d)(4) allows the Agency the

discretion to determine whether it is “inappropriate or

administratively infeasible” to treat Indian tribes exactly the

same as states in administering the Act. Petitioners offer no

support for their assertions that the judicial review

requirements do not come within the EPA’s discretion under

this section. It is obvious, then, that the Agency had a choice

as to whether to treat Indian tribes identical to states with

36a

regard to the judicial review elements of § 766la(b). The

clear meaning of the statute does not foreclose the Agency’s

interpretation.

ya

~~ Nor is the Agency’s interpretation unreasonable. EPA

understandably was concerned that the effect of requiring

tribes to submit their permitting disputes to state courts

would conflict with policies supporting tribal sovereignty and

also discourage the institution of tribal permitting programs.

The Agency’s decision to allow tribes to submit alternatives

to waiving sovereign immunity accomplishes a reasonable

balancing of these interests. This is bolstered by EPA’s

expressed intention to ensure that any alternative to a waiver

of sovereign immunity nonetheless provides an impartial

forum allowing for “injunctive-type relief.” Tribal Authority

Rule, 63 Fed. Reg. at 7262.

Petitioners also argue that, assuming that EPA could

exempt tribes from judicial review requirements,

§ 7601(d)(4) requires that EPA provide an alternative means

of ensuring effective judicial review. Petitioners suggest that

EPA must at least “provide for review by the Regional

Administrator of all tribal permit decisions, and resolve all

federal or tribal challenges to the tribe’s actions.” Br. for

Petitioners NAM at 44. To the extent that this argument

merely reiterates the contention that EPA has no authority to

alter tribes’ judicial review responsibilities, nothing more

need be said. To the extent that this argument challenges the

alternative tribal review procedures to be approved by EPA

in lieu of judicial review in state court, this issue is not ripe

for review. EPA has not yet approved any alternative tribal

judicial review procedures. See Tribal Authority Rule, 63

Fed. Reg. at 7262 (“EPA will develop guidance in the future

on acceptable alternatives to judicial review.”). As such,

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37a

there is no decision “fit” for judicial review, nor have

petitioners demonstrated any hardship from deferred review.

Petitioners advance a separate contention in support of

vacating the rule: that interested parties did not receive

sufficient notice of the substance of the final rule. The

Administrative Procedure Act requires that an agency publish

notice of its proposed rulemaking that includes “either the

terms or substance of the proposed rule or a description of the

subjects and issues involved.” 5 U.S.C. § 553(b)(3) (1994).

An agency satisfies this notice requirement if the final rule is

a “logical outgrowth” of the proposed rule. See Aeronautical

Radio, Inc. v. FCC, 928 F.2d 428, 445-46 (D.C. Cir. 1991).

In other words, we consider “‘whether . . . [the party], ex

ante, should have anticipated that such a requirement might

be imposed’” in determining whether adequate notice was

given in a notice of proposed rulemaking. /d. at 446 (quoting

Small Refiner Lead Phase-Down Task Force v. EPA, 705

F.2d 506, 549 (D.C. Cir. 1983)) (alterations in original).

“In most cases, if the agency . . . alters its course in

response to the comments it receives, little purpose would be

served by a second round of comment.” American Water

Works Ass'n v. EPA, 40 F.3d 1266, 1274 (D.C. Cir. 1994).

Thus, the “logical outgrowth” test normally is applied to

consider “whether a new round of notice and comment would

provide the first opportunity for interested parties to offer

comments that could persuade the agency to modify its rule.”

Id. (emphasis added). In this case, there was more than

enough notice for interested parties to offer comments on

EPA’s treatment of the judicial review provisions of the Act

vis a vis Indian tribes. The parties were not asked to “divine

the EPA’s unspoken thoughts.” Shell Oil Co., 950 F.2d at

751. And the final rule was not wholly unrelated or

surprisingly distant from what EPA initially suggested. In

38a

first proposing that tribes would have to meet the “same

requirements” as states, EPA effectively raised the question

as to whether this made sense. EPA’s proposal was not a

“bureaucratic game of hide and seek,” MC/ Telecomm. Corp.

v. FCC, 57 F.3d 1136, 1142 (D.C. Cir. 1995); the proposal

raised a highly visible and controversial issue and elicited

responses from both tribal and industry commenters.

Furthermore, any reasonable party should have understood

that EPA might reach the opposite conclusion after

considering public comments. In short, it is fair to say that

the purpose of notice and comment rulemaking has been

served, and that the Agency’s change of heart on this issue

only demonstrates the value of the comments it received.

Ill. CONCLUSION

Consistent with the foregoing opinion, we deny the

petitions for review in part, and dismiss in part for want of

jurisdiction and for lack of ripeness. Petitioners’ motions for

vacatur and remand are dismissed as moot.

** * *

GINSBURG, Circuit Judge, dissenting in part: With

certain exceptions, of which more later, an Indian tribe lacks

inherent authority to regulate the conduct of a nonmember on

land he owns within the boundaries of the tribe’s reservation.

Lacking inherent authority, a tribe may exercise regulatory

authority over such non-Indian lands only by express

congressional delegation. The court today determines that

§ 301(d)(2)(B) of the Clean Air Act, 42 USC.

§ 7601(d)(2)(B), expressly delegates to tribes—contingent

upon approval by the EPA Administrator—authority to

enforce the Clean Air Act on nonmembers’ lands within a

reservation. Finding no such express delegation in

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§ 301(d)(2)(B), I dissent from Part I.A of the opinion for the

court.

I. Background

In State of Montana v. United States, 450 U.S. 544

(1981), the Crow tribe had sought to regulate nonmembers’

hunting and fishing upon lands owned in fee by the State of

Montana but lying within the boundaries of the Crow

reservation. The Supreme Court, unanimous upon this point,

held that a tribe generally lacks authority to regulate the

conduct of nonmembers upon lands owned in fee by

nonmembers (“fee lands”); of the two exceptions the Court

noted, the only one arguably relevant here is 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.” Jd. at 566. Absent such a threat or

effect, tribal regulation of fee lands within a reservation

requires an “express congressional delegation.” /d. at 564.

The two provisions of the Clean Air Act relevant to the

question of tribal authority to enforce the Act on fee lands

were added by § 107 of the 1990 Amendments, Pub. L. No.

101-549, 104 Stat. 2399, 2464. Section 301(d) of the Act, 42

U.S.C. § 7601(d). provides in relevant part:

(1) Subject to the provisions of paragraph (2), the

Administrator . . . is authorized to treat Indian tribes

as States under this chapter . . .

(2) The Administrator shall promulgate regulations

- . . Specifying those provisions of this chapter for

which it is appropriate to treat Indian tribes as States.

40a

Such treatment shall be authorized only if—

(A) the Indian tribe has a governing body carrying

out substantial governmental duties and powers;

(B) the functions to be exercised by the Indian

tribe pertain to the management and protection of

air resources within the exterior boundaries of the

reservation or other areas within the tribe's

jurisdiction; and

(C) the Indian tribe is reasonably expected to be

capable, in the judgment of the Administrator, of

carrying out the functions to be exercised in a

manner consistent with the terms and purposes of

this chapter and all applicable regulations.

Section 110(0) of the Act, 42 U.S.C. § 7410(0), provides in

its entirety:

If an Indian tribe submits an implementation plan to

the Administrator pursuant to section [301(d), above],

the plan shall be reviewed in accordance with the

provisions for review set forth in this section for State

plans, except as otherwise provided by regulation

promulgated pursuant to section [301(d)(2)]. When

such plan becomes effective in accordance with the

regulations promulgated under section [301(d)], the

plan shall 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.

The EPA’s Tribal Authority Rule (TAR) allows a tribe

(subject to approval by the Administrator of the EPA) to

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enforce the Clean Air Act on all land within the boundaries

of a reservation without having to demonstrate its inherent

authority over all such land. Under the clear rule of

Montana, however, a tribe lacks inherent sovereign authority

to regulate fee lands (and rights of way, see Strate y. A-]

Contractors, 520 US. 438, 456 (1997)) within a reservation

except under the aforementioned exception announced in that

case. Therefore, the TAR must be set aside as contrary to

law unless the 1990 Amendments expressly delegate to tribes

authority over fee lands and rights of way within a

reservation. Upon that Starting point for analysis the parties,

the court, and I agree.

The EPA claims to find a delegation of authority in

§ 301(d)(2)(B) of the Clean Air Act. In evaluating this claim,

the court is to accord no deference to the EPA’s interpretation

of that section because Montana requires an “express

congressional delegation” in order to expand tribal authority.

In other words, the EPA cannot prevail merely by

demonstrating that its interpretation of § 301(d)(2)(B) is

reasonable: the agency’s interpretation must be correct if the

TAR is to stand. Therefore, although we are reviewing an

EPA rule-making, on this issue the focal point for our inquiry

is not the EPA’s interpretation but the Statute itself. Upon

this methodological point, too, all agree.

II. Analysis

With these agreed upon principles in mind, it seems to

me clear that the 1990 Amendments do contain an express

delegation of authority over fee lands and rights of way—but

not in § 301(d), which governs tribal enforcement of all

Clean Air Act programs specified by the Administrator.

Rather, the delegation is in § 110(0), which governs only

tribal implementation plans (TIPs). Because the specific

42a

delegatory text in § 110(0) is significant to my conclusion

that § 301(d) is not a delegation, I consider § 110(o) first.

A. Section 110(0) and the “Notwit*standing” Proviso

The petitioners’ convoluted argument to the contrary

notwithstanding, § 110(0) is self-evidently an express

congressional d2legation of authority to enforce TiPs on fee

lands and rights of way within a reservation: “the [TIP] shall

become applicable to all areas . . . located within the exterior

boundaries of the reservation, notwithstanding the issuance

of any patent and including rights-of-way running through

the reservation.” The same “notwithstanding” proviso has

been a feature in the only two cases in which the Supreme

Court has found an express delegation of authority to tribes.

In United States v. Mazurie, 419 U.S. 544 (1975), and in Rice

v. Rehner, 463 U.S. 713 (1983), the Court found an express

delegation of authority over fee lands within a reservation

based upon two statutory provisions: 18 U.S.C. § 1161,

which authorizes the tribes to enact ordinances regulating

liquor in “Indian country”; and 18 U.S.C. § 1151, which

defines “Indian country” to include “all land within the limiis

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.” See Rice, 463 U.S. at 715 & n.1 (“Congress has

delegated authority . . . in Indian country [as defined in] 18

U.S.C. § 1151”); see also Brendale v. Confederated Tribes &

Bands of the Yakima Indian Nation, 492 U.S. 408, 428

(1989) (citing 18 U.S.C. §§ 1151 and 1161 together as an

pare es

43a

express congressional delegation of authority over fee

lands).”

B. Section 301(d)

The express congressional delegation just identified in

§ 110(0) cannot by itself support the TAR, however:.

Because the TAR allows a tribe to enforce all applicable

Clean Air Act programs—rather than just the TIP—on

nonmember lands within its reservation, the EPA must

dernonstrate that § 301(d) likewise contains an express

congressional deiegation of authority.

The EPA argues the following text distilled from

§ 301(d) contains an express delegation to tribes of authority

to regulate fee lands within a reservation:

[T]he Administrator . . . is authorized to treat Indian

tribes as States... . Such treatment shall be

authorized only if . . . the functions to be exercised by

the Indian tribe pertain to the management and

protection of -air resources within the exterior

* In a dictum, the Brendale Court noted as a second example of

an express Congressional delegation of authority §§ 518(e), (h)(1) of the

Clean Water Act, 33 U.S.C. §§ 1377(e), (h)(1), the latter of which,

significantly, contains the notwithstanding clause so glaringly absent

from § 301(d). 492 U.S. at 428. In terms that otherwise track § 301(d)

of the Clean Air Act, § 518(e) provides for conditionally treating a tribe

as a state with regard to water resources “within the borders of an Indian

reservation,” defined in § 518(h)(1) as “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.” In spite of the Brendale

dictum, the EPA has concluded § 518 is not an express congressional

delegation of authority, see 56 Fed. Reg. 64,876, 64,880 (1991), but no

court has yet resolved the issue.

44a

boundaries of the reservation or other areas within the

tribe’s jurisdiction.

42 U.S.C. § 7601(d)(1)-(d)(2)(B) (emphasis added). The gist

of the agency’s argument, which the court accepts, is that the

Congress expressly delegated authority over all lands within

a reservation by linking “within the exterior boundaries of the

reservation” disjunctively to “other areas within the tribe’s

jurisdiction.” For the following reasons, I do not agree.

As the petitioners emphasize, when one reads the relevant

sentence as a whole—rather than focusing solely upon the

last phrase—one sees that, rather than expressing a

delegation of authority over fee lands and rights-of-way

within a reservation, the sentence by its terms merely lays

down a precondition to the Administrator’s treating a tribe as

a state. Even more certainly, there is no way to read the

phrase deemed crucial by the court (“within the exterior

boundaries of the reservation or other areas within the tribe’s

jurisdiction”) as an express delegation of authority.

One important indication that the Congress did not intend

this phrase as an express delegation is that it used the Court-

tested “notwithstanding” proviso in § 110(0) but not in

§ 301(d)(2)(B). Sections 110(0) and 301(d)(2)(B) were

enacted at the same time, in the same section of the same bill,

so the different phrasing should not be thought just an artifact

of legislative haphazardry. I do not believe that the

Congress, obviously aware that it could enlarge tribal

authority over nonmember lands only through an express

delegation, would include the formulaic “notwithstanding”

proviso—the gold standard for such delegations—in the

narrower of the two sections, and then use an obscure and

never-before-attempted formulation to accomplish the same

result in the broader of the two sections. Further, the court’s

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interpretation of § 301(d)(2)(B) renders the

“notwithstanding” proviso in § 110(0) surplusage—a point

the court euphemistically acknowledges, Slip Op. at 23 (“a

reinforcement of tribes’ . . . [§ 301(d)(2)(B) authority] to

implement TIPs in reservation land”). If § 301(d)(2)(B) is so

clear as to constitute an express congressional delegation, it

is difficult to believe that the Congress would "reinforce" this

point in a narrower provision enacted at the same time as and

expressly cross-referencing § 301(d).°

Finding an express congressional delegation in § 301(d)

is made even more difficult, as the petitioners contend, by the

Congress's having deleted a literal delegation to tribes that

was included in the corresponding section of the bills by

which the 1990 Amendments were first introduced in the

House and the Senate: "the Administrator . . . may delegate to

{ ] tribes primary responsibility for assuring air quality and

enforcement of air pollution control.” H.R. 2323, 101st Cong.

§ 604, reprinted in 2 Legislative History of the Clean Air Act

* The court suggests the Congress may well have intentionally

avoided using the “notwithstanding” proviso in § 301(d) in response to

the EPA's having interpreted § 518 of the Clean Water Act as not being a

delegation. Slip Op. at 13. The EPA's interpretation of the CWA was not

adopted, however, until December 1991, more than a year after

enactment of the 1990 Amendments. See 56 Fed. Reg. 64,876, 64,880. |

am not willing blithely to “assume that Congress was aware of,” much

less responded to, the EPA's mere proposal to adopt that interpretation.

When the 1990 Amendments were enacted, the EPA's unexplained

proposal was still subject to change in the light of public comments, and

even if finally adopted would not receive deference from a reviewing

court charged with determining whether the Congress had made an

express delegation to tribes. In contrast, we know for a certainty that the

Congress was aware of Brendale, in which the Supreme Court instanced

CWA § 518(h)(1) as an express congressional delegation: That case had

been decided in June 1989, and is cited in the Senate Report on an earlier

version of the 1990 Amendments, see S. Rep. No. 101-228, at 79.

46a

Amendments of 1990, at 4053, 4101 (1993) /hereinafter

1990 Leg. Hist.}; S. 1630, 101st Cong. 111, reprinted in 5

1990 Leg. Hist. 9050, 9145. The Senate passed S. 1630 with

this express delegation intact; the House, however, did not

act upon H.R. 2323 but instead passed H.R. 3030, in which

the delegation provision did not appear. See 2 1990 Leg.

Hist. 1809, 1972-73 (House passage of S. 1630, amended in

the nature of a substitution of H.R. 3030). The House

version prevailed in conference, see id at 478-79, so the

1990 Amendments as finally enacted into law do not contain

this literal delegation provision. The court is of course

correct that the Congress need not use the word “delegate” in

order to effect an express delegation, Slip Op. at 15; § 110(o0)

illustrates the point. That the Congress “specifically rejected

language favorable to [EPA’s] position,” Slip Op. at 12,

however, is further evidence that the legislature did not mean

to enact a delegation of authority. Indeed, to believe that the

Congress meant § 301(d)(2)(B) to serve as a delegation, after

it had included the “notwithstanding” proviso in the narrower

§ 110(0) and removed from § 301(d) a provision that

expressly provided a delegation to tribes, would require one

to believe the Congress was more interested in testing our

interpretive acumen than in clearly expressing its will upon

the important issue of tribal authority over nonmembers.

The court claims support for its contrary conclusion in the

Congress having “moved from authorizing tribal regulation

over the areas ‘within the tribal government’s jurisdiction’ . .

. to a bifurcated classification of all areas within “the exterior

boundaries of the reservation’ and ‘other areas within the

tribe’s jurisdiction.”” Slip Op. at 12. Putting aside the

question-begging interpolation of “all” into the quoted

passage, | think the court misapprehends the significance of

the phrase “within the exterior boundaries of the reservation

or other areas within the tribe’s jurisdiction.” As originally

47a

introduced, H.R. 3030 referred only to air resources “within

the exterior boundaries of the reservation.” 2 1990 Leg. Hist.

3737, 3853. The House Committee on Energy and

Commerce without comment added the phrase “or other areas

within the tribe’s jurisdiction,” id at 3021, 3069, and as

mentioned, the House version later prevailed in conference.

The legislative record is silent about why the Committee

added that phrase. The most straightforward interpretation of

the addition is that the Committee wanted to ensure that the

treatment of tribes as states extended beyond the reservation

to non-contiguous areas of tribal authority, such as dependent

Indian communities. This seems far more likely than that a

House committee, with no discussion, inserted the phrase “or

other areas within the tribe’s jurisdiction” in order to turn a

simple reference to reservations into a delegation of authority

over non-Indian lands within reservations.

Finally, | cannot agree with the court that we should find

an express congressional delegation of authority in

§ 301(d\(2)(B) in any part because the contrary reading

“would result in a ‘checkerboard’ pattern of regulation within

a reservation’s boundaries that would be inconsistent with the

purpose and provisions of the [Clean Air] Act.” Slip Op. at

11-12. First, it is not at all clear that a “checkerboard”

pattern—really a matter of certain fee lands remaining

subject to State (or federal) rather than tribal authority, while

surrounding areas go tribal—would result: a tribe remains

free to demonstrate its inherent authority over any activity on

fee lands that “threatens or has some direct effect on . . . the

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

Therefore, if a tribe does find itself without authority over

certain fee lands for want of an express delegation, that is

only because no activities on those fee lands threaten or

directly affect the health or welfare of the tribe.

48a

Second, tribal authority over less than all lands within the

boundaries of a reservation is the logical result of the tribes’

“diminished status as sovereigns,” Montana, 450 U.S. at 565.

The Montana rule on its face contemplates less than uniform

authority within a reservation; unless an exception applies,

the tribe cannot regulate a parcel owned by a nonmember

even though it retains authority over the surrounding lands

owned by the tribe. See, e.g, Brendale, 492 U.S. at 428

(White, J., for the Court in part and dissenting in part), 443,

445 (Stevens, J., for the Court in part and concurring in the

judgment in part) (each affirming non-uniform zoning

authority). While the Congress could have chosen to sweep

away such non-uniformity in § 301(d), as it did in § 110(o),

the court’s evident sense that the Congress should have done

so is no basis for reading an express delegation into the

statute where the Congress has not written one.”

* Seymour v. Superintendent of Washington State Penitentiary,

368 U.S. 351 (1962) and Moe v. Confederated Salish and Kootenai

Tribes of Flathead Reservation, 425 U.S. 463 (1976), cited by the court

today, certainly do not counsel reading an express delegation into a

statute in order to avoid non-uniform tribal authority within a reservation.

In Seymour, the Court held that “an impractical pattern of checkerboard

jurisdiction was avoided by the plain language of [18 U.S.C.] § 1151,”

namely, the “notwithstanding” proviso. 368 U.S. at 358. And in Moe,

the Court determined that because the Congress had “repudiated” but

never formally repealed § 6 of the General Allotment Act, 25 U.S. § 349,

the court would read §6 narrowly in order to avoid creating an

inconsistency with later-enacted statutes. 425 U.S. at 477-79. Thus, the

Court was merely “follow{ing}] Congress’ lead in this area.” /d. at 479.

So, too, where the Congress has expressly delegated authority, as in

§ 110(0). we should certainly give its command full rein; but where it has

not, we shouid not undertake to do so for it.

49a

Ill. Conclusion

In my view, . 301(d)(2)(B) is not an express delegation

of authority for Indian tribes to regulate the conduct of

nonmembers on fee lands within the boundaries of a

reservation. A tribe may be able, of course, to demonstrate

its authority over such fee lands under the exception

recognized in Montana. Without making such a showing,

however, I do not believe the tribe may regulate the conduct

of nonmembers on fee lands and rights-of-way except as

provided by § 110(0). I therefore respectfully dissent from

Part II.A. of the opinion for the court.

50a

APPENDIX B

Tribal Authority Rule

63 Fed. Reg. 7254 (February 12, 1998)

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 9, 35, 49, 50, and 81

[OAR-FRL-5964-2]

RIN 2060-AF79

Indian Tribes: Air Quality Planning and Management

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: The Clean Air Act (CAA) directs EPA to

promulgate regulations specifying those provisions of the Act

for which it is appropriate to treat Indian tribes in the same

manner as states. For those provisions specified, a tribe may

develop and implement one or more of its own air quality

programs under the Act. This final rule sets forth the CAA

provisions for which it is appropriate to treat Indian tribes in

the same manner as states, establishes the requirements that

Indian tribes must meet if they choose to seek such treatment,

and provides for awards of federal financial assistance to

tribes to address air quality problems.

EFFECTIVE DATE: March 16, 1998.

Sla

FOR FURTHER INFORMATION CONTACT: David R.

LaRoche, Office of Air and Radiation (OAR 6102), U.S.

Environmental Protection Agency, 401 M Street, S.W..

Washington D.C. 20460 at (202) 260-7652.

SUPPLEMENTARY INFORMATION: Supporting

information used in developing the final rule is contained in

Docket No. A-93-3087. The docket is available for public

inspection and copying between 8:30 a.m. and 3:30 p.m.

Monday through Friday, at EPA’s Air Docket, Room M-

1500, Waterside Mall, 401 M Street SW, Washington, D.C.

20460. A reasonable fee may be charged for copying.

This preamble is organized according to the following

outline:

I. Background of the Final Rule

If. Analysis of Major Issues Raised by Commenters

A. Jurisdiction

B. Sovereign Immunity and Citizen Suit

te Air Program Implementation in Indian

Country

D. CAA Sections 110(c)(1) and 502(d)(3)

Authority

II. Significant Changes from the Proposed Regulations

IV. Miscellaneous

A. Executive Order (EO) 12866

52a

B. Regulatory Flexibility Act (RFA)

c. Executive Order (EO) 12875 and the

Unfunded Mandates Reform Act (UMRA)

1). Paperwork Reduction Act

E. Submission to Congress and the General

Accounting Office

I. Background of the Final Rule

Summary of Issues Raised by the Proposal

EPA proposed rules on August 25, 1994 (59 FR

43956) to implement section 301(d) of the Act. The proposal

elicited many comments from state and tribal officials,

private industry, and the general public. A total of 69

comments were received, of which 44 were from tribes or

tribal representatives; 13 from state and local governments or

associations; 10 from = industry (primarily utilities and

mining); and, | from Department of Energy (DOF) and |

from an environmental interest group in Southern California.

The tribes and several other commenters generally express

support for the proposed rule and the delegation of CAA

authority to eligible tribes to manage reservation air

resources. Tribes especially urge EPA to expedite the

finalization of this rule to enable tribes to begin to implement

their air quality management programs and encourage PA

to recognize that the development of tribal air programs will

be an evolving process requiring both time and significant

assistance from EPA.

Most of the tribal commenters express concern with

the inclusion of the citizen suit provisions which, they

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believed, effected a waiver of their sovereign immunity; they

recommend that this provision be deleted in the final rule.

This is a major issue for tribes. State and local government

and industry commenters are primarily concerned that the

proposed rule would create an unworkable scheme for

implementing tribal air quality programs, and many of these

commenters question the scope of tribal regulatory

jurisdiction.

Responses to many of the comments related to issues

of jurisdiction and sovereign immunity are included in

sections II.A and II.B in the analysis of comments below.

Responses to comments on the issues raised concerning

federal implementation in Indian country are addressed in

sections II.C and II.D of this document. All other comments

are addressed in a document entitled “response to comments”

that can be found in the docket for this rule cited above.

il. Analysis of Major Issues Raised by Commenters

A. Jurisdiction

5 Delegation of CAA Authority to Tribes

It is a settled point of law that Congress may, by

statute, expressly delegate federal authority to a tribe. United

States v. Mazurie, 419 U.S. 544, 554 (1975). See also South

Dakota v. Bourland, 113 S. Ct. 2309, 2319-20 (1993),

Brendale v. Confederated Tribes and Bands of the Yakima

Indian Nation, 492 U.S. 408, 426-28 (1989) (White, J., for

four Justice plurality). Such a delegation or grant of

authority can provide a federal statutory source of tribal

authority over designated areas, whether or not the tribe's

inherent authority would extend to all such areas. In the

August 25, 1994 proposed tribal authority rule, EPA set forth

its interpretation that the CAA is a delegation of federal

S4a

authority, to tribes approved by EPA to administer CAA

programs in the same manner as states, over all air resources

within the exterior boundaries of a reservation for such

programs. Today, EPA is finalizing this approach. This

grant of authority by Congress enables eligible tribes to

address conduct relating to air quality on all lands, including

non-Indian-owned fee lands, within the exterior boundaries

of a reservation.

EPA’s position that the CAA constitutes a statutory

grant of jurisdictional authority to tribes is consistent with the

language of the Act, which authorizes EPA to treat a tribe in

the same manner as a state for the regulation of “air resources

within the exterior boundaries of the reservation or other

areas within the tribe’s jurisdiction.” CAA _ section

301(d)(2)(B). EPA believes that this statutory provision,

viewed within the overall framework of the CAA, establishes

a territorial view of tribal jurisdiction and authorizes a tribal

role for all air resources within the exterior boundaries of

Indian reservations without distinguishing among various

categories of on-reservation land. See also CAA sections

110(0), 164(c).

In light of the statutory language and the overall

statutory scheme, EPA is exercising the rulemaking authority

entrusted to it by Congress to implement the CAA provisions

granting approved tribes authority over all air resources

within the exterior boundaries of a reservation. See generally

Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-45 (1984).

This interpretation of the CAA as generally delegating such

authority to approved tribes is also supported by the

legislative history, which provides additional evidence of

Congressional intention regarding this issue. See S. Rep. No.

228, 101st Cong., Ist Sess. 79 (1989) (“the Act constitutes an

express delegation of power to Indian tribes to administer and

enforce the Clean Air Act in Indian lands” (citation to

Brendale omitted)) (hereinafter referred to as “Senate

RARER AR

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Report”).' EPA also believes this territorial approach to air

quality regulation best advances rational, sound, air quality

management.

(a) Support for the delegation approach. _ Tribal

commenters and several industry commenters support EPA’s

interpretation that the CAA constitutes a delegation of

Congressional authority to eligible tribes to implement CAA

programs over their entire reservations. Numerous tribal

commenters assert that EPA’s territorial delegation approach

is consistent with federal Indian law and the intent of

Congress as expressed in several provisions of the CAA.

Several tribal commenters note that, while tribes have

inherent sovereign authority over all air resources within the

exterior boundaries of their reservations, EPA should finalize

the delegation approach to avoid case-by-case litigation

concerning inherent authority and to eliminate the disruptive

potential of a “checkerboarded” pattern of tribal and state

jurisdiction on reservations. Several tribal commenters assert

that the delegation approach is compelled by the language of

the CAA and federal Indian law principles. One tribal

commenter states that the delegation approach is consistent

with the federal government’s trust responsibility to

federally-recognized Indian tribes.

(b) Statutory Interpretation. Several _ state

commenters assert that the CAA does not constitute an

“express congressional delegation” of authority to tribes as

' Further, it is a well-established principle of statutory

construction that statutes should be construed liberally in favor of

Indians, with ambiguous provisions interpreted in ways that benefit

tribes. County of Yakima v. Confederated Tribes and Bands of the

Yakima Indian Nation, 112 S.Ct. 683, 693 (1992). In addition, statutes

should be interpreted so as to comport with tribal sovereignty and the

federal policy of encouraging tribal independence. Ramah Navajo

School Board, Inc. v. Bureau of Revenue of New Mexico, 458 U.S. 832,

846 (1982).

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required by the Supreme Court's decisions in Montana v

United States, 450 U.S. 544 (1981) and Brendale, 492 U.S.

408. Several state and industry commenters dispute EPA’s

interpretation of CAA section 301(d)(2)(B), which states that

EPA may treat a tribe in the same manner as a state if, among

other things, “the functions to be exercised by the Indian tribe

pertain to the management and protection of air resources

within the exterior boundaries of the reservation or other

areas within the tribe’s jurisdiction.” One commenter asserts

that the “or” in “or other areas within the tribe's jurisdiction”

means that treatment of a state is authorized for a tribe as to

air resources over which the tribe has jurisdiction, whether or

not those areas fall within its reservation boundaries. In other

words, tribes would not necessarily have jurisdiction over all

sources within reservation boundaries. The commenter states

that EPA has improperly read the “or” in_ section

301(d)(2)(B) as an “and.”

EPA believes the plain) meaning of — section

301(d)(2)(B) is that a tribe can implement a CAA program

for air resources if: (1) the air resources are within a

reservation; or (2) the air resources are within a non-

reservation area over which the tribe can demonstrate

jurisdiction. 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 requiring the

tribe to demonstrate its own jurisdiction, but to require a tribe

to demonstrate jurisdiction over any other areas, i.¢., non-

reservation areas, over which it seeks to implement a CAA

program. Under section 301(d)(2)(B), eligible tribes may be

treated in the same manner as states for protecting “air

resources” within “the reservation” or in “other areas within

the tribe’s jurisdiction.” Both the term “reservation” and the

phrase “other areas within the tribe’s jurisdiction” modify the

phrase “air resources.” In addition, it is clear from the

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structure of the provision and the CAA and legislative history

taken as a whole that the phrase “within the tribe's

jurisdiction” modifies the phrase “other areas” and not the

term “reservation” or the phrase “air resources.” If Congress

intended to require tribes to demonstrate jurisdiction over

reservations, Congress would have simply stated that EPA

may approve a tribal program only for air resources over

which the tribe can demonstrate jurisdiction.’

One commenter states that EPA's interpretation of

CAA section 301(d)(2)(B) has made CAA section 301(d)(4),

which allows EPA to administer provisions of the Act

directly if treatment of a tribe as identical to a state is found

to be “inappropriate or administratively infeasible,”

extraneous. The commenter asserts that if CAA section

301(d(2)(B) is a delegation of authority to a tribe, EPA

would never have cause to find treatment of a tribe as a state

“inappropriate or administratively infeasible.” EPA

disagrees that its interpretation has made _ section

301(d)(2)(B) superfluous because, even with the delegation

of federal authority to tribes for reservation areas, it is not

appropriate or administratively feasible to treat tribes as

states for all purposes. In such cases, section 301(d)(4)

allows EPA, through rulemaking, to “directly administer

such provisions [of the Act] so as to achieve the appropriate

purpose” either by tailoring the provisions to tribes or

conducting a federal program.

* Contrary to the commenter’s assertion, EPA does not interpret

the “or” in this section as an “and”. If the “or” were an “and”, under

section 301(d2) EPA would be authorized to approve a tribal program

“only if” the functions to be exercised by the tribe pertain to air resources

that are both within a reservation and within non-reservation areas over

which the tribe can demonstrate jurisdiction. This interpretation is

nonsensical. Moreover, nothing in the Act or legislative history suggests

that Congress intended to limit so severely the universe of tribes eligible

for CAA programs

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An industry commenter states that CAA section

110(0), which provides that when a tribal implementation

plan (TIP) becomes effective under CAA section 301(d) “the

plan shall become applicable to all areas (except as expressly

provided otherwise in the plan) located within the exterior

boundaries of the reservation * * *,” does not support EPA’s

interpretation of the CAA as a delegation because section

110(0) is only applicable to plans EPA approved pursuant to

regulations under section 301(d).

EPA believes that section 110(0) recognizes that

approved tribes are authorized to exercise authority over all

areas within the exterior boundaries of a reservation for the

purposes of TIPs. EPA notes that the commenter omitted the

following remaining language in the quoted sentence from

CAA section 110(0): “located within the exterior boundaries

of the reservation, notwithstanding the issuance of any patent

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

EPA believes that this additional language makes clear that

TIPs may apply to al) areas within the exterior boundaries of

reservations. EPA believes that the phrase “except as

expressly provided otherwise in the plan” refers to a situation

where a tribe seeks to have its TIP apply only to specific

areas within a reservation.

An industry commenter states that the CAA does not

depart from other Congressional provisions regarding

“treatment as a state” in the Clean Water Act (CWA) and the

Safe Drinking Water Act (SDWA) and EPA has already

determined that these other statutes do not constitute a

delegation of authority to tribes. EPA notes that the CAA

“treatment as a state” provision is notably different from the

SDWA “treatment as a state” provision. Compare CAA §

301(d)(2) (“the functions to be exercised by the Indian tribe

[must] pertain to the management and protection of air

resources within the exterior boundaries of the reservation or

other areas within the tribe’s jurisdiction”) with SDWA §

CMAN, Wily Sait ar

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1451(b)(1)(B) (“the functions to be exercised by the Indian

tribes [must be] within the area of the Tribal Government’s

jurisdiction”). In addition, although CWA section 518(e) and

CAA section 301(d) both contain language regarding tribal

programs over “Indian reservations,” EPA believes that the

overall statutory scheme and legislative history of the CAA

represent a clearer expression than that of the CWA that

Congress intended to effectuate a delegation to tribes over

reservations.’ EPA notes that, except for the provisions in

CWA section 518(e) and SDWA section 1451(b)(1)(B), the

Water Acts do not otherwise indicate what areas are subject

to tribal regulatory authority. By contrast, several provisions

of the CAA expressly recognize that tribes may exercise

CAA authority over all areas within the exterior boundaries

of the reservation. See CAA sections | 10(0) and 164(c).

One industry commenter states that EPA should make

clear that the CAA does not supersede other laws that may

define or limit the extent of trival regulatory jurisdiction.’

‘ EPA also notes that a federal district court has Stated that CWA

section 518(e) may be read as an express delegation of authority to tribes

over all reservation water resources. Montana v. US EPA, 941 F. Supp.

945, 951, 957 n.10 & n.12 (D. Mont. 1996) citing Brendale, 492 U.S. at

428 (White, J.). In the preamble to its 1991 CWA regulation, EPA found

the statutory language and legislative history of the CWA too

inconclusive for the Agency to rely on the delegation theory, but noted

that “the question of whether section 518(e) is an explicit delegation of

authority Over non-Indians is not resolved.” 56 FR 64876, 64880-88 |

(December 12, 1991).

* This commenter also asserts that the Chevron doctrine does not

support EPA’s interpretation that the CAA settles all jurisdictional issues

on lands within reservations. While EPA believes that the CAA

represents a clear delegation of authority to eligible tribes over

reservation resources, EPA notes that, to the extent the Statute is

ambiguous, EPA’s interpretation would be entitled to deference. In

addition, the Agency has broad expertise in reconciling federal

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The commenter states that, given that the CAA does not

supersede all other laws regarding tribal jurisdiction, EPA

should follow a case-by-case approach for addressing

jurisdiction within reservation boundaries. One state

association notes that some states have statutory jurisdiction

over non-Indian fee lands located on reservations and EPA

does not address how conflicts between the CAA and these

statutes will be addressed.

EPA believes that the CAA delegation of authority to

eligible tribes over reservations represents a more recent

expression of Congressional intent and will generally

supersede other federal statutes. See Adkins v. Arnold, 235

U.S. 417, 420 (1914) (noting that “later in time” statutes

should take precedence). There may be, however, rare

instances where special circumstances may preclude EPA

from approving a tribal program over a reservation area. For

example, in rare cases, there may be another federal statute

granting a state exclusive jurisdiction over a reservation area

that may not be overridden by the CAA. There may also be

cases where a current tribal constitution may limit tribal

exercise of authority.”

EPA will consider on a case-by-case basis whether

special circumstances exist that would prevent a tribe from

implementing a CAA _ program over its reservation.

Appropriate governmental entities will have an opportunity

to raise these unique issues on a case-by-case basis during

EPA’s review of a tribal application. Where tribes are aware

environmental and Indian poiicies. Washington Department of Ecology,

752 F.2d 1465, 1469 (9th Cir. 1985).

* Among other things, the commenter questions whether pre-

existing treaties or binding agreements may limit the extent of regulatory

jurisdiction. EPA believes that the CAA generally would supersede pre-

existing treaties or binding agreements that may limit the scope of tribal

authority over reservations.

6la

of such issues, they should bring the issues to EPA’s

attention by including them in the tribe’s “descriptive

statement of the Indian tribe’s authority to regulate air

quality” under 40 CFR 49.7(a\(3). If EPA determines that

there are special circumstances that would preclude the

Agency from approving a tribal program over a reservation

area, the Regional Administrator would limit the tribal

approval accordingly under 40 CFR 49.9%e) and (g).

(c) Legislative History. Several industry and local

government commenters assert that the legislative history

does not support EPA's interpretation of the CAA as a

delegation. They state that Senate Report No. 101-228, pp.

78-79, 1990 U.S. Code Cong. Admin. News at 3464-65

(Senate Report) evidences Congress’ intent that the CAA

authorizes tribal programs in the same manner as had been

authorized under the CWA and SDWA, both of which EPA

has interpreted to authorize tribal programs only in areas over

which a tribe can demonstrate inherent jurisdiction. The

commenter also states that the Senate Report made clear that

treatment as a state is only authorized for areas within a

tribe's jurisdiction. Ip addition, one commenter states that

Congress in 1990 knew how similar provisions of the CWA

and SDWA had been interpreted and “Congress can normally

be presumed to have had knowledge of the interpretation

given to the incorporated law. * * *” citing St. Regis Mohawk

Tribe, New York v. Brock, 769 F.2d 37, 50 (2nd Cir. 1985).

One commenter further argues that the Senate Report refers

to Brendale, which requires a case-by-case approach to tribal

inherent jurisdiction.

EPA acknowledges that the summary of the treatment

as a state provisions in the Senate Report contains a general

Statement suggesting that tribes are to demonstrate

jurisdiction for all areas for which they seek a program,

including reservation areas. However, the summary is

followed by a detailed discussion that makes clear that

62a

Congress intended to provide an express delegation of power

to Indian tribes for all reservation areas and to require a

jurisdictional showing only for non-reservation areas. Senate

“Report at 79.

In addition, the Senate Report cited Brendale for the

proposition that Congress may delegate federal authority to

tribes. Moreover, although Brendale does support a case-by-

case approach to evaluating tribal inherent authority over

non-members of the tribe, EPA notes that the Senate Report

cites the section of the Brendale opinion (pages 3006-07) in

which Justice White recognizes that Congress may expressly

delegate to a tribe authority over non-members. See

Brendale, 109 S.Ct. 2994, 3006-07 (1989). EPA believes

that this statement in the Senate Report further supports

EPA’s view that the CAA was intended to be a delegation.

EPA also notes that in 1989, when the Senate Report was

written, EPA had not yet finalized its interpretation that

Congress, in the CWA, did not clearly intend a delegation to

tribes. See 56 FR 64876, 64880-881 (December 12, 1991);

see also Montana v. EPA, 941 F. Supp. 945, 951, 957 n.10 &

n.12 (noting that the CWA may be read as a delegation of

CWA authority to tribes over reservations). Thus, read as a

whole, the Senate Report supports EPA’s interpretation that

the CAA is a delegation.

(d) Limitations on Congressional delegations of

authority. Several state and municipal commenters state that

Montana, Brendale, and Bourland establish that tribes

generally do not have authority to regulate the activities of

nonmembers on nonmember-owned fee lands. Several

commenters also assert that tribes generally will not have

inherent authority over sources of air pollution on non-Indian

owned fee lands within a reservation. As discussed in detail

in the preamble to the proposed rule (59 FR 43958 ef seq.),

EPA believes that tribes generally will have inherent

authority over air pollution sources on fee lands. 59 FR at

63a

43958 n.5; see also Montana v. EPA, 94) F.Supp. 945 (D.

Mont. 1996\(upholding EPA’s determination that the

Confederated Salish and Kootenai Tribes possess inherent

authority over nonmember activities on fee lands for

purposes of establishing water quality standards under the

CWA). Nonetheless, because the Agency is interpreting the

CAA as an explicit delegation of federal authority to eligible

tribes, it is not necessary for EPA to determine whether tribes

have inherent authority over all sources of air pollution on

their reservations.

Several commenters state that only delegations over

lands and activities subject to inherent tribal power are

permissible. One commenter states that the proposed rule

should be modified to require tribes to establish preexisting

authority for on-reservation CAA programs, at least with

regard to fee lands heid by nonmembers within reservations.

Two commenters, one citing the United States Constitution

and the other citing U.S. v. Morgan, 614 F.2d 166 (8th Cir.

1980), also assert that a tribe cannot have delegated authority

over nonmembers on fee lands living in a non-Indian

community within a reservation. A state commenter asserts

that these two factors, i.e., whether a tribe possesses inherent

authority and whether the delegation is over nonmembers

living on fee lands within a non-Indian community, were

factors considered by the Supreme Court in Mazurie in

evaluating whether Congress had validly delegated federal

authority to tribes to regulate the introduction of alcoholic

beverages into Indian country.

EPA believes that Indian tribes have sufficient

independent authority to assume a Congressional delegation

of authority to implement CAA programs. The Supreme

Court in Mazurie acknowledged that Indian tribes have

sovereignty over “both their members and their territory.”

419 U.S. at 557. As discussed above, EPA believes that

tribes generally will have inherent authority to regulate

64a

sources of air pollution on nonmember-owned iee lands

within reservations as well. However, EPA notes that the

Court in Mazurie held that it is not necessary for a tribe to

have independent authority over all matters that would be

subject to the delegated authority; rather “[ijt 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 ‘to regulate

Commerce * * * with the Indian tribes.” 419 U.S. at 557

(citation omitted).

In addition, while the Court in Mazurie noted that

Constitutional limits on the authority of Congress to delegate

its legislative power are “less stringent in cases where the

entity exercising the delegated authority itself possesses

independent authority over the subject matter,” the Court did

not say that some independent source of authority was an

absolute prerequisite for a Congressional delegation. 419

U.S. at 556-57.° Even in a case where a particular tribe's

inherent authority is markedly limited, the detailed

parameters outlined in the CAA and EPA’s oversight role

over tribal exercise of authority delegated by the CAA are

sufficient to ensure that Constitutional limitations on the

delegated authority have not been exceeded.

° One industry commenter asserts that delegations of federal

authority from Congress must “clearly delineate” policy and standards to

be effective or valid, citing American Power & Light Co. v. Securities

and Exchange Commission, 329 U.S. 90, 105 (1946). According to this

commenter, EPA’s proposed interpretation does not meet this standard.

EPA agrees that the non-delegation doctrine does include a limitation on

the devolution of legislative power under terms so vague as to be

standardless, but that limitation has become a very low threshold, see

Mistretta v. United States, 488 U.S. 361 (1989)(Scalia, J., dissenting);

Industrial Union Dep't v. American Petroleum Inst., 448 U.S. 607 (1980)

(Rehnquist, J., concurring in the judgment), and is easily met by the

CAA. The CAA provides detailed direction to tribes on the parameters

under which CAA programs are to be implemented.

65a

Furthermore, EPA disagrees with the commenter’s

assertion that the United States Constitution and federal court

precedent prohibit Congress from delegating authority to a

tribe over nonmembers on fee land living in a non-Indian

community within a reservation. See City of Timber Lake v.

Cheyenne River Sioux Tribe, 10 F.3d 554 (8th Cir. 1993),

reh'g en banc denied, 1994 U.S. App. Lexis 501 (1994), cert

denied, 512 U.S. 1236 (1994): see also Rice v. Rehner, 463

U.S. 713, 715 (1983) (noting that Congress, in 18 U.S.C.

1161, delegated to tribes authority to regulate liquor

throughout Indian country, including in non-Indian

communities). The discussion in Morgan and Mazurie about

“non-Indian communities” was centered around the specific

language of 18 U.S.C. sections 1154 and 1156 regarding

introduction of alcoholic beverages into Indian country, and

is not relevant to an interpretation of the CAA. In addition.

EPA notes that the Eighth Circuit Court of Appeals, in City

of Timber Lake, 10 F.3d 554, declined to follow its prior

decision in Morgan, and concluded that 18 U.S.C. section

1161 delegated authority to tribes to regulate liquor in all of

Indian country, including non-Indian communities.

One industry commenter asserts that, if EPA finalizes

its position that Congress has delegated federal authority to

tribes, EPA should state explicitly in its rule that the Bill of

Rights and other federal protections for regulated entities

apply to tribal air programs. EPA notes that the Indian Civil

Rights Act imposes tribal on governments restrictions similar

to those contained in the Bill of Rights and the Fourteenth

Amendment, including the prohibitions against the denial of

due process and equal protection, and the taking of private

property without just compensation. 25 U.S.C. 1302: Santa

Clara Pueblo vy. Martinez, 436 U.S. 49, 57 (1978). These

protections extend to all persons subject to tribal jurisdiction,

whether Indians or non-Indians. Jowa Mutual Insurance Co.

v. LaPlante, 480 U.S. 9, 19 (1987). EPA believes that

66a

whether or not the Bill of Rights applies to tribes

implementing the CAA on reservations is an issue for the

courts to decide when and if the issue arises in a particular

case. See Mazurie, 419 U.S. at 558 n. 12.

(e) Use of the word “reservation.” Several tribal

commenters supported EPA’s proposal to construe the term

“reservation” to include trust land that has been validly set

apart for use by a tribe, even though that land has not been

formally designated as a “reservation.” See 59 FR at 43960;

56 FR at 64881; see also Oklahoma Tax Comm'n y. Citizen

Band Potawatomi Indian Tribe of Oklahoma, 111 S.Ct. 905,

910 (1991). Some tribal commenters suggested that the

definition of “reservation” in proposed § 49.2 be broadened

specifically to include “trust land that has been validly set

apart for use by a Tribe, even though the land has not been

formally designated as a reservation.”

A state commenter states that EPA has not provided

an analysis of relevant provisions in the CAA to support its

proposition that the term “reservation” includes “trust land

that has been validly set apart for the use of a Tribe.” In

addition, this commenter questions EPA’s reliance on

Oklahoma Tax Comm'n because that case deals with trust

lands in Oklahoma and may not be universally applicable.

Several commenters express concern that the phrase “exterior

boundaries of the reservation” could encompass lands held in

fee by nonmembers outside of areas formally designated as

“reservations.” A state commenter suggests that EPA should

require a case-by-case demonstration in cases where non-

Indian-owned lands exist which may be surrounded by the

exterior boundaries of 1 Pueblo. The commenter asserts that

in these circumstances there is no evidence that the non-

Indian lands were “validly set apart for the use of the Indians

as such, under the superintendence of the Government.” The

State of Oklahoma objects to EPA’s use of the word

“reservation” because, by federal law, the term “reservation”

67a

can include former reservations in Oklahoma, which include

approximately the entire State. See 25 U.S.C. 1425. The

State suggests that EPA should limit the term reservation to

include only tribal trust land in Oklahoma; lands held in trust

for individual Indians, Oklahoma asserts, should not be

considered “reservations.”

It is the Agency’s position that the term “reservation”

in CAA section 301(d)(2)(B) should be interpreted in light of

Supreme Court case law, including Oklahoma Tax Comm'n.

in which the Supreme Court held that a “reservation,” in

addition to the common understanding of the term, also

includes 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. In applying this precedent to

construe the term “reservation” in the context of the C WA,

the Agency has only recognized two categories of lands that.

even though they are not formally designated as

“reservations,” nonetheless qualify as “reservations”:

Pueblos and tribal trust lands. EPA will consider lands held

in fee by nonmembers within a Pueblo to be part of a

“reservation” under 40 CFR 49.6(c) and 49.7(a)(3). EPA

will consider on a case-by-case basis whether other types of

lands other than Pueblos and tribal trust lands may be

considered “reservations” under federal Indian law even

though they are not formally designated as such. Appropriate

governmental entities will have an opportunity to comment

on whether a particular area is a “reservation” during EPA’s

review of a tribal application. The Agency does not believe

that additional, more specific language should be added to

the regulatory definition of “reservation.” because the

Agency’s interpretation of the term “reservation” will depend

on the particular status of the land in question and on the

interpretation of relevant Supreme Court precedent.

A tribal consortium states that the proposed

requirement in § 49.7(a)(3) that tribes “must identify with

68a

clarity and precision the exterior boundaries of the

reservation * * *” precludes Alaska Native villages from

applying for EPA-approved CAA programs. The full

language of the proposed requirement in § 49.7(a)(3) is “[flor

applications covering areas within the exterior boundaries of

the applicant’s Reservation the statement must identify with

clarity and precision the exterior boundaries of the

reservation * * * .” Ifa tribe is seeking program approval for

non-reservation areas, the tribe need not provide a reservation

description. As noted below, EPA is finalizing its proposed

position, under section 301(d)(2)(B), that an eligible tribe

may implement its air quality programs in non-reservation

areas provided the tribe can adequately demonstrate authority

to regulate air quality in the non-reservation areas in question

under general principles of Indian law. Thus, if an Alaska

Native village can demonstrate authority to regulate air

resources in non-reservation areas, the areas will be

considered “other areas within the tribe’s jurisdiction” under

section 301(d)(2)(B) of the Act.

(f) Policy Rationales. \ndustry and municipal

commenters state that it is improper for EPA to base its

interpretation of the CAA regarding tribal jurisdiction on

policy arguments seeking to avoid “jurisdictional

entanglements” and checkerboarding. A state comments that

given the intense controversy surrounding the issue of

authority over the activities of nonmembers on fee lands,

litigation is likely. The commenter states that litigation

would cause long-term jurisdictional uncertainties, which

will erode effective implementation of the Act, and that EPA

should address and resolve jurisdictional issues in the

reservation program planning | stage. One _ industry

commenter asserts that EPA’s proposal to interpret the CAA

as a delegation is inconsistent with EPA policy statements

that EPA will authorize tribal programs only where tribes

“can demonstrate adequate jurisdiction over pollution sources

69a

throughout the jurisdiction.” July 10, 1991 EPA/State/Tribal

relations memorandum, signed by Administrator Reilly.

EPA’s interpretation of the CAA is based on the

language, structure, and intent of the statute. The Agency

believes that Congress, in the CAA, chose to adopt a

territorial approach to the protection of air resources within

reservations—an approach that will have the effect of

minimizing jurisdictional entanglements and

checkerboarding within reservations. EPA expects that the

delegation approach will minimize the number of case-

specific jurisdictional disputes that will arise and enhance the

effectiveness of CAA implementation. EPA notes that its

interpretation of the CAA does not conflict with the

Agency's general Indian policy statements regarding tribal

jurisdiction. Under the CAA, EPA will not approve a tribe

unless it has the authority to implement the program either by

\irtue of delegated federal authority over reservation areas, or

a demonstration of authority under principles of federal

Indian law over other areas on a case-by-case basis.

(g) Current and historical application of state laws

on parts of reservations. State and industry commenters

assert that states have historically regulated non-member

CAA-related activities on fee lands within reservation

boundaries and the proposal ignores this historical treatment

and the transition issues it raises. The commenters suggest

that EPA consider changing the proposed regulations to

“grandfather” existing facilities subject to state authority, so

that states continue to regulate those facilities until the

affected parties all agree cooperatively to a transition from

state to tribal jurisdiction. One commenter states that both

the affected state and EPA would need to approve any

necessary state implementation plan (SIP) revisions.

It is EPA’s position that, unless a state has explicitly

demonstrated its authority and been expressly approved by

EPA to implement CAA programs in Indian country, EPA is

70a

the appropriate entity to be implementing CAA programs

prior to tribal primacy. See preamble section II.C. and ILD.

for a discussion of federal implementation of CAA programs

in Indian country. EPA will not and cannot “grandfather”

any state authority over Indian country where no explicit

demonstration and approval of such authority has been made.

EPA, as appropriate, will address any need for SIP revisions

on a case-by-case basis.

2. Authority in Non-Reservation Areas Within a Tribe's

Jurisdiction

CAA section 301(d)(2)(B) provides that a tribe may

be treated in the same manner as a state for functions

regarding air resources “within the exterior boundaries of the

reservation or other areas within the tribe’s jurisdiction”

(emphasis added). In the August 25, 1994 proposed tribal

authority rule, EPA set forth its interpretation that this

provision authorizes an eligible tribe to develop and

implement tribal air quality programs in non-reservation

areas that are determined to be within the tribe’s jurisdiction.

Today, EPA is finalizing this approach.

(a) Support for EPA’s approach. Several tribal

commenters support EPA’s interpretation that “other areas

within the Tribe’s jurisdiction” in CAA section 301(d)(2)(B)

means that a tribe may implement its air quality programs in

non-reservation areas under its jurisdiction, generally

including all non-reservation areas of Indian country. One

tribal commenter asserts that the “Indian country” standard is

the standard consistently used by courts in determining a

tribe’s jurisdiction.

(b) Request for Clarification. Several commenters

request that EPA clarify what is meant by the phrase “other

areas within a Tribe’s jurisdiction.” Some commenters state

that this phrase must be clarified to avoid conflicts between

7la

states and tribes in interpreting their own jurisdiction and

uncertainty for regulated sources. One commenter urges

EPA to develop published criteria by which the Agency will

decide whether a tribe may develop and implement a CAA

program in areas outside the exterior boundaries of a

reservation. Some commenters also request that EPA clarify

what is meant by “Indian country.”

EPA notes that the phrase “other areas within the

tribe's jurisdiction” contained in CAA section 301(d)(2)(B)

and 40 CFR 49.6 is meant to include all non-reservation areas

over which a tribe can demonstrate authority, generally

including all non-reservation areas of Indian country. As

noted above, it is EPA’s interpretation that Congress has not

delegated authority to otherwise eligible tribes to implement

CAA prograiis over non-reservation areas as it has done for

reservation areas. Rather, a tribe seeking to implement a

CAA program over non-reservation areas may do so only if it

has authority over such areas under general principles of

federal Indian law.

EPA notes that the definition of “Indian country”

contained in 18 U.S.C. section 1151, while it appears in a

criminal code, provides the general parameters under federal

Indian law of the areas over which a tribe may have

jurisdiction, including civil judicial and regulatory

jurisdiction. See DeCoteau v. District County Court, 420

U.S. 425, 427 n. 2 (1975). EPA acknowledges that there may

be controversy over whether a particular non-reservation area

is within a tribe’s jurisdiction. However, EPA believes that

these questions should be addressed on a case-by-case basis

in the context of particular tribal applications. EPA has

established a process under section 49.9 for appropriate

governmental entities to comment on assertions of authority

in individual tribal applications. More discussion of the

parameters of “Indian country” is provided in the detailed

response to comment document.

72a

Some tribal commenters object to EPA’s description

of the proposed requirement in § 49.7(a)(3)(ii) that, where a

tribe seeks to have its program cover areas outside the

boundaries of a reservation, the tribe must demonstrate its

“inherent authority” over those areas. These commenters

assert that the term “inherent authority” must be clarified

because it may inappropriately limit the potential sources of

tribal authority to regulate non-reservation air resources.

EPA agrees that there may be cases where a tribe has

authority to regulate a non-reservation area that derives from

a federal statute or some other source of federal Indian law

that is not based on “inherent authority.” Section

49.7(a)(3)(ii) only asks a tribe seeking to implement a CAA

program in a non-reservation area to “describe the basis for

the tribe’s assertion of authority * * *.” Under this provision,

a tribe may include any basis for its assertion of authority.

Some tribal commenters ask EPA to take the position

that the phrase “other areas within the tribe’s jurisdiction”

means that tribes will have control over sources in close

proximity to a reservation. One tribe comments that EPA has

a trust responsibility to ensure that tribes have authority to

control sources of air pollution outside of reservation

boundaries that affect the health and welfare of tribal

members living within reservation boundaries. One tribe

asks whether non-reservation jurisdictional areas include

ceded lands where tribes retain the right to hunt and fish.

As noted above, it is EPA’s position that, while

Congress delegated CAA authority to eligible tribes for

reservation areas, the CAA authorizes a tribe to implement a

program in non-reservation areas only if it can demonstrate

authority over such areas under federal Indian law. Thus, a

tribe may implement a CAA program over sources in non-

reservation areas, including ceded territories, if the tribe can

demonstrate its authority over such sources under federal

Indian law. CAA provisions regarding cross-boundary

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impacts are the appropriate mechanisms for addressing cases

where sources outside of tribal authority affect tribal health

and environments. See, e.g., CAA sections 110(a)(2)(D),

126, and 164(e). The issue of cross-boundary impacts is

discussed further in the response to comments document.

(c) Comments challenging FPA’s interpretation of the

CAA. Some commenters state that CAA section 110(0)

limits the jurisdictional reach of a TIP to areas located within

the boundaries of a reservation. One commenter asserts that

since a tribe can only implement its TIP within a reservation,

to allow a tribe to implement other parts of the CAA in non-

reservation areas would be unmanageable and unreasonable.

EPA believes that the reference in CAA section

110(0) to “reservation” is simply a description of the type of

area over which a TIP may apply. EPA does not believe the

provision was intended to limit the scope of TIPs to

reservations. CAA section 301(d)(1) authorizes EP/_ to treat

a tribe in the same manner as a state for any provision of the

Act (except with regard to appropriations under section 105)

as long as the requirements in section 301(d)(2) are met.

EPA has decided to include most of the provisions of section

110 in the group of provisions for which treatment of tribes

in the same manner as a state is appropriate. Section

301(d)(2) permits EPA to approve eligible tribes to

implement CAA programs, including TIPs, over non-

reservation areas that are within a tribe’s jurisdiction.

An industry commenter asserts that the Senate Report

evidences that Congress intended to provide tribes the same

opportunity to adopt programs as provided under the CWA

and SDWA. This commenter asserts that tribal jurisdiction

under those statutes is limited to reservations. EPA notes

that the SDWA does not limit tribal programs to reservations.

See 42 U.S.C. 300j-11(b)(1)(B) (authorizing a tribal role

“within the area of the Tribal Government’s jurisdiction.”).

EPA also notes that there is evidence in the Senate Report

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that Congress intended to authorize EPA to approve eligible

tribes for CAA programs in non-reservation areas of Indian

country that are within a tribe’s jurisdiction. The report

States that section 301(d) is designed “to improve the

environmental quality of the air wit{hjin Indian country in a

manner consistent with EPA Indian Policy and ‘the overall

Federal position in support of Tribal self-government ard the

government-to-government relations between Federal and

Tribal Governments’ * * *.” Senate Report at 79 (emphasis

added) (citing EPA’s 1984 Indian Policy); see also, id. at 80.

3. Other Jurisdictional Issues

Several local governments comment that the final rule

should ensure that tribes with very small reservations do not

have authority under an air program to adversely affect

economic development in adjacent areas, intrude upon the

jurisdiction of local governments, or create checkerboarded

regulation. One commenter asserts that the proposal would

allow for EPA approval of “islands” of Indian programs and

“will create the same problems for states and local

governments which EPA believes will be eliminated by

granting tribes full regulatory power over all land within

reservation borders.” In addition, a state commenter states

that extending tribal programs to non-reservation areas within

the parameters of 18 U.S.C. section 1151 conflicts with

EPA’s goal under the CAA of increasing cohesive air quality

management. Several commenters state that regulation by

tribes with very small reservations or other very small areas

of Indian country would be administratively impractical.

Several local governments state that a minimum size

should be placed on areas to be considered for tribal

jurisdiction. An industry commenter suggests that the final

rule limit non-reservation tribal programs to those areas

under tribal jurisdiction that are contiguous with reservations.

75a

Some local government commenters also state that EPA,

instead of a tribe, should consider enforcing programs on

small areas of Indian country.

EPA acknowledges that there may be cases where the

Agency may approve a tribe’s application to implement a

CAA program over a relatively small land area. EPA also

recognizes that approval of a tribal program over a small area

that is surrounded by land covered by a state CAA program

could lead to less uniform regulation. However, EPA

believes it would be inappropriate to place a blanket

limitation on the geographic size of an approvable tribal

program. EPA notes that Congress, in the CAA, authorized

the Agency to approve tribal CAA programs when a tribe

meets the criteria contained in CAA section 301(d)(2\B)

without regard to size of area. In addition, it is long-standing

federal Indian policy to support tribal self-government and a

government-to-government relationship with federally

recognized Indian tribes. See Senate Report at 79; April 29,

1994 Presidential Memorandum, “Government-to-

Government Relations with Native American Tribal

Governments,” 59 FR 22,951 (May 4, 1994). Furthermore,

EPA policy favors tribal over federal implementation of

environmental programs in areas under tribal jurisdiction.

See 59 FR at 43962; November 8, 1984 “EPA Policy for the

Administration of Environmental Programs on_ Indian

Reservations.” EPA also recognizes that under the realities

of federal Indian law, there are some small pockets of Indian

country under tribal and federal jurisdiction that lie among

lands under state jurisdiction. While EPA recognizes that its

approval of tribal programs over small areas may result in

less uniform regulation in some cases, the Agency believes

that the approach to tribal jurisdiction outlined in this Tribal

Authority Rule best reconciles federal Indian and

environmental policies. See Washington Department of

Ecology, 752 F.2d at 1469. The Agency’s overall approach

76a

minimizes the potential for checkerboarded regulation within

Indian reservations (see preamble at II.A.1.(a)), while

promoting tribal sovereignty and self-determination.

One tribal commenter states that pollution from air

sources outside a tribe’s jurisdiction must be addressed. This

commenter states that section 126 of the CAA, while

designed to address this issue, is awkward and probably

difficult to administer. In addition, local government

commenters state that the off-site effect of approving tribal

programs for Indian lands should be considered. One local

commenter states that “mutual protection for air quality

goals, health values and customs should be assured for all

within any physical air basin to the extent workable.”

EPA notes that several provisions -of the CAA are

designed to address cross-boundary air impacts. EPA is

finalizing its proposed approach that the CAA protections

against interstate pollutant transport apply with equal force to

states and tribes. Thus, EPA is taking the position that the

prohibitions and authority contained in sections 110(a)(2)(D)

and 126 of the CAA apply to tribes in the same manner as

states. As EPA noted in the preamble to its proposed rule,

section 110(a)(2)(D), among other things, requires states to

include provisions in their SIPs that prohibit any emissions

activity within the state from significantly contributing to

nonattainment, interfering with maintenance of the national

ambient air quality standards (NAAQS), or interfering with

measures under the Prevention of Significant Deterioration

(PSD) or visibility protection programs in another state or

area. In addition, section 126 authorizes any state or tribe to

petition EPA to enforce these prohibitions against a state

containing an allegedly offending source or group of sources.

The issue of cross-boundary impacts is discussed further in

the response to comment document.

Several tribal commenters note that, in the preamble

to the proposed rule, EPA misstated the dollar limitation

77a

contained in the Indian Civil Rights Act on criminal fines

that may be imposed by tribes. EPA agrees that the dollar

limitation in the Indian Civil Rights Act on criminal fines is

$5,000 as opposed to $500.

B. Sovereign Immunity and Citizen Suit

l. Section 304

In its August 25, 1994 Notice of Proposed

Rulemaking (NPR) EPA proposed, under the CAA’s section

301(d) rulemaking authority, that the citizen suit provisions

contained in section 304 of the Act should apply to tribes in

the same manner in which they apply to states. See 59 FR at

43978. In today’s final action, EPA is declining to announce

a position, in the context of the rulemaking required under

section 301(d) of the Act, regarding wheiher tribes are

subject to the citizen suit provisions contained in section 304,

and therefore is not finalizing the position stated in the NPR.

In order to facilitate tribal adoption and implementation of air

quality programs in a manner similar to state-implemented

programs, section 301(d) requires EPA to specify through

rulemaking those provisions of the Act which the Agency

believes are appropriate to apply to tribes. EPA’s rulemaking

approach has been to deem all CAA provisions appropriate

for tribes, except for those provisions specifically listed in the

rule regarding which EPA, for various reasons, believes it

may be inappropriate for the Agency, solely in the context of

its 301(d) authority, to make such a determination. Thus, the

direct consequence for today’s final action of EPA’s decision

not to adopt the position presented in the NPR regarding the

provisions of section 304 is that section 304 has been added

to the list of those CAA provisions which, for section 301(d)

purposes, EPA has concluded it is not appropriate to

determine that tribes should be treated as states. That list is

78a

contained in section 49.4 of today’s rule. EPA is also

clarifying the relationship of this final action regarding

section 304 to the right that tribes enjoy, as sovereign

powers, to be immune from suit. See Santa Clara Pueblo v.

Martinez, 436 U.S. 49, 58 (1978). :

The Agency received a number of comments on the

section 304 citizen suit issue. One group of industry

commenters appears to be in favor of tribes being subject to

citizen suits, and is particularly concerned that non-tribal

members be provided with similar enforcement opportunities

for TIPs as are required for SIPs. The majority of comments

received on this issue came from tribal governments, mainly

disputing EPA’s claim that section 301(d), as a legal matter,

provided EPA with the authority to apply the section 304

citizen suit provisions to tribes since doing so would appear

to have the effect of administratively waiving tribal sovereign

immunity. These commenters argue that only the tribes

themselves or Congress may waive tribal sovereign

immunity and, further, that Congressional intent to waive

tribal sovereign immunity may not be implied but must be

express and unequivocal. They do not believe that the CAA,

including section 301(d), contains such an express waiver.

Several of the commenters also state that because states are

subject to section 304 only “to the extent permitted by the

Eleventh Amendment to the Constitution,” applying it to

tribes would likely make the requirement more burdensome

than it would be for states. Several tribal commenters also

express the view that citizen suit recourse is unnecessary

since EPA retains enforcement authority under various other

CAA provisions, for example, sections 110(m), 179(a)(4),

and 502(i). Finally, concern is expressed that adopting a

policy of subjecting tribes to citizen suits could hinder

development of tribal air programs because it could add

significant resource constraints, financial and otherwise,

particularly with respect to potential litigation.

79a

Section 304 of the CAA reflects the general principle

underlying all environmental citizen suit provisions, namely

that actors who accept responsibility for regulating health-

based standards and who voluntarily commit themselves to

undertake control programs in furtherance of such goals,

ought to be accountable to the citizens those programs are

designed to benefit. However, EPA agrees, as several

commenters pointed out, that section 304 only applies to

States to the extent permitted by the Eleventh Amendment to

the Constitution. The Supreme Court has interpreted the

provisions of the Eleventh Amendment as generally serving

to protect a state from liability to suit where the state does not

consent to be sued. EPA believes that, just as states

implementing air quality programs are not subject to citizen

suits except to the extent permitted by the Eleventh

Amendment of the Constitution and the provisions of the

Clean Air Act, by analogy, in the context of air program

implementation in Indian country, the issue of citizen suit

liability would be determined based on established principles

of tribal sovereign immunity and the provisions of the Clean

Air Act. This is meant to emphasize that no EPA action in

this final rule either enhances or limits the immunity from

suit traditionally enjoyed by Indian tribes as sovereign

powers.

Because the Eleventh Amendment does not apply to

tribes (by its terms, the Eleventh Amendment only addresses

suits brought “against one of the United States”), and because

the provisions of section 304 (and the applicable definitions

in section 302) do not expressly refer to tribes, EPA has been

concerned that the action it proposed to take may have

subjected tribes to citizen suit liability in situations in which

citizens could not sue states. Because of this uncertainty,

EPA believes it is not appropriate to attempt to resolve this

significant issue in the context of the limited scope of the

rulemaking required under section 301(d).

80a

EPA also notes that courts have long recognized that

citizen plaintiffs may bring actions for prospective injunctive

relief against state officials under the CAA section 304

citizen suit provisions, as well as under other environmental

statutes with similar citizen suit provisions. See Council of

Commuter Organizations v. Metro. Transp., 683 F.2d 663,

672 (2nd Cir. 1982). See also Seminole Tribe of Florida v.

Florida, 116 S. Ct. 1114, 1133 n.17 (1996) (acknowledging

that lower courts have entertained suits against state officials

pursuant to citizen suit provisions in environmental statutes

substantially identical to CAA section 304(a)(1)). While this

raises the question of whether such actions could be brought

against “tribal officials,’ EPA believes this issue is also

outside the scope of this rulemaking.

YG Judicial Review Provisions of Title V

In its proposed rulemaking, EPA proposed to treat

tribes in the exact same manner as states for purposes of the

provisions of CAA sections 502(b)(6) and 502(b)(7)

addressing judicial review under the Title V Operating

Permits Program. 59 FR at 43972. For the reasons discussed

below, in today’s final action EPA is withdrawing its

proposal to treat tribes in the exact same manner as states for

purposes of these judicial review provisions. As described

below, however, tribes that opt to establish a Title V program

will still need to meet all requirements of sections 502(b)(6)

and 502(b)(7) except those provisions that specify that

review of final action under the Title V permitting program

be “judicial” and “in State court.”

As noted above in the discussion regarding the

applicability of CAA section 304 to tribes, commenters

express concern over waivers of tribal sovereign immunity to

judicial review. Several tribal commenters also note that

requiring tribes to waive sovereign immunity in order to run

————— eee ee eae Saas ¥sKs\XwF¥X*--ee—

8la

a Title V program will be a strong disincentive for tribes to

assume these programs. Two industry commenters state that

nonmembers that are regulated by tribes must have access to

courts for judicial review. Several commenters express

concern that some tribal governments may lack a distinct

judicial system.’

EPA recognizes the importance of providing citizens

the ability to hold accountable those responsible for

regulating air resources. Nonetheless, EPA also

acknowledges that applying the judicial review provisions of

Title V to tribes through this rule would raise unique issues

regarding federal Indian policy and law. EPA is mindful of

the vital importance of sovereign immunity to tribes. In

addition, EPA is aware that in some instances tribes do not

have distinct judicial systems. Finally, EPA has long

recognized the importance of encouraging tribal

implementation of environmental programs and avoiding the

establishment of unnecessary barriers to the development of

such programs. E.g., EPA’s 1984 Indian Policy; see also

Senate Report at 8419 (noting that section 301(d) is generally

intended to be consistent with EPA’s 1984 Indian Policy).

” Two industry commenters stated that tribal courts “lack many

procedural, substantive law and constitutional protection{s] for non-

members.” EPA is aware that tribal governments are not subject to the

requirements of the Bill of Rights and the Fourteenth Amendment of the

U.S. Constitution, and that review of tribal court decisions in federal

court may be limited. However, EPA notes that the Indian Civil Rights

Act requires tribes to provide several protections similar to those

contained in the Bill of Rights and the Fourteenth Amendment, including

due process of law, equal protection of the laws, and the right not to have

property taken without just compensation. 25 U.S.C. § 1302; Santa

Clara Pueblo v. Martinez, 436 U.S. 49, 57-(1978). These protections

extend to all persons subject to tribal jurisdiction, whether Indians or

non-Indians. See Jowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9,19

(1987).

82a

EPA seeks to strike a balance among these various

considerations. See Washington Department of Ecology v.

EPA, 752 F.2d 1465, 1469 (9th Cir. 1985).

In order to ensure a meaningful opportunity for public

participation in the permitting process, it is EPA’s position

that some form of citizen recourse be available for applicants

and other persons affected by permits issued under tribal

Title V programs. One option for review of final actions

taken under a tribal Title V program is for tribes to consent to

suit through voluntary waiver of their sovereign immunity in

tribal court. EPA supports the continued development and

strengthening of tribal courts and encourages those tribes that

will implement Title V permitting programs to consent to

challenges by permit applicants and other affected persons in

tribal court. For the reasons discussed above, however,

requiring tribes to provide for review in the exact same

manner as states pursuant to section 502(b)(6) is not

appropriate.

In some cases, well-qualified tribes seeking approval

of Title V programs may not have a distinct judiciary, but

rather may use non-judicial mechanisms for citizen recourse.

See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 65-66

(1978) (“Non-judicial tribal institutions have * * * been

recognized as competent law-applying bodies.”). In addition,

a requirement that tribes waive their sovereign immunity to

judicial review, in some cases, may discourage tribal

assumption of Title V programs. Thus, EPA is willing to

consider alternative options, developed and proposed by a

tribe in the context of a tribal CAA Title V program

submittal, that would not require tribes to waive their

sovereign immunity to judicial review but, at the same time,

would provide for an avenue for appeal of tribal government

action or inaction to an independent review body and for

injunctive-type relief to which the Tribe would agree to be

bound.

83a

EPA has consistently stressed the importance of

judicial review under state Title V programs. E.g., Virginia

v. Browner, 80 F.3d 869, 875 (4th Cir. 1996) (“EPA

interprets the statute and regulation to require, at a minimum,

that states provide judicial review of permitting decisions to

any person who would have standing under Article III of the

United States Constitution. Notice of Proposed Disapproval,

59 Fed. Reg. 31183, 31184 (June 17, 1994)”), cert denied

117 S.Ct. 764 (1997). However, the statutory scheme

regarding tribal clean air programs is quite different from that

of states. Section 301(d)(2) of the Act explicitly provides

EPA with the discretion to “specify * * * those provisions for

which it is appropriate to treat Indian tribes as States.” 42

U.S.C. 7601(d)(1). In addition, section 301(d)(4) of the Act

states that where EPA “determines that treatment of tribes as

identical to states is inappropriate or administratively

infeasible, [EPA] may provide, by regulation, other means by

which [EPA] will directly administer such provisions so as to

achieve the appropriate purpose.” 42 U.S.C. 7610(d)(4). As

EPA noted in the preamble to the proposed rule, tribes have a

“unique legal status and relationship to the Federal

government that is significantly different from that of States.

[C]ongress did not intend to alter this when it authorized

treatment of Tribes ‘as States’ under the CAA.” 59 FR at

43962, n.11.

In addition, there is ample precedent for treating

tribes and states differently under federal Indian law. E.g.,

U.S. Const. amend. XIV; Indian Civil Rights Act, 25 U.S.C.

1301 et. seqg.; and Santa Clara Pueblo v. Martinez, 436 U.S.

49 (1978). In Santa Clara, the Supreme Court addressed the

availability of federal court review of tribal action under the

Indian Civil Rights Act (ICRA), which requires tribal

governments to provide several protections similar to those

contained in the Bill of Rights and the Fourteenth

Amendment. In finding that no additional federal court

84a

remedies beyond habeas corpus were provided by Congress

for review of tribal compliance with the ICRA, the Court

noted that Congress had struck a balance between the dual

statutory objectives of enhancing individual rights without

undue interference with tribal sovereignty. Santa Clara, 436

U.S. at 65-66. EPA has concluded that in enacting section

301(¢) of the Act, Congress provided EPA with the

discretion to balance the goals of ensuring meaningful

opportunities for public participation under the CAA and

avoiding undue interference with tribal sovereignty when

determining those provisions for which it is appropriate to

treat tribes in the same manner as states. See Washington

Department of Ecology v. EPA, 752 F.2d 1465, 1469 (9th

Cir. 1985) (“it is appropriate for us to defer to EPA’s

expertise and experience in reconciling [Indian policy and

environmental policy], gained through administration of

similar environmental statutes on Indian lands.”).

In addition to the requirement that tribal Title V

programs provide some avenue for appeal of tribal

government action or inaction and for injunctive-type relief,

EPA may use several oversight mechanisms to ensure that

tribal Title V programs provide adequate opportunities for

citizen recourse. E.g., CAA sections 502(i)(requiring EPA

assumption of state or tribal Title V programs that EPA finds

are not being adequately implemented or enforced), 505(b)

(requiring EPA objection to state or tribal Title V permits

that EPA finds do not meet applicable requirements).

Thus, under today’s final rulemaking, EPA is not

requiring tribes to provide for judicial review in the same

manner as states under CAA section 502(b)(6). EPA will

develop guidance in the future on acceptable alternatives to

judicial review. In reviewing the Title V program

submission of any tribe proposing an alternative to judicial

review, EPA will apply such guidance to determine, pursuant

to its section 301(d) authority, whether the tribe has provided

85a

for adequate citizen recourse consistent with the requirement

in CAA section 502(b)(6) that there be review of final permit

actions and the guidance and principles discussed above.

EPA emphasizes that tribes seeking to implement the

Title V program will still need to meet all the requirements of

CAA section 502(b)(6), except the requirements that review

of final permit actions be “judicial” and “in state court.”

Specifically, tribes seeking to implement the Title V

program, will need to provide:

[ajdequate, streamlined, and reasonable procedures for

expeditiously determining when applications are complete,

for processing such applications, for public notice, including

offering an opportunity for public comment and a hearing,

and for expeditious review of permit actions, including

applications, renewals, or revisions, and including an

opportunity for * * * review * * * of the final permit action

by the applicant, any person who participated in the public

comment process, and any other person who could obtain

judicial review of that action under applicable law.

CAA section 502(b)(6). In addition, all provisions of CAA

section 502(b)(7) will apply to tribal programs except the

requirements that the review be “judicial” and in “State

court.”

C Air Program Implementation in Indian Country

The August 25, 1994, proposed tribal authority rule

set forth EPA’s view that, based on the general purpose and

scope of the CAA, the requirements of which apply

nationally, and on the specific language of sections 301(a)

and 301(d)(4), Congress intended to give to the Agency

broad authority to protect tribal air resources. The proposal

went on to state that EPA intended to use its authority under

4

s

rs

86a

the CAA “to protect air quality throughout Indian country”

by directly implementing the Act’s requirements in instances

where tribes choose not to develop a program, fail to adopt

an adequate program or fail to adequately implement an air

program.” Jd. at 43960. Comments on this issue were

received from tribes, state and local government

representatives, and industry.

The comments generally support the discussion of

EPA’s authority under the CAA to protect air quality

throughout Indian country, but, overall, seek specific

clarification- with respect to the time frame and scope of

federal implementation. In addition, several commenters,

although focusing on different aspects of the issue, express a

general concern that there be no diminution or interruption in

tribal air resource protection while tribal programs are being

developed. EPA acknowledges the seriousness of the

concerns identified

This text is long and has been trimmed here. Open the source document for the complete record.