Opposition Brief — Michigan v. Environmental Protection Agency

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Supreme Court, U.S.

@ FILED

No. 00-7

IN THE

SUPREME COURT OF THE|UNITEDISERTES

‘se

: 4

STATE OF MICHIGAN, et al.,

Petitioners,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, et ai.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF RESPONDENTS

GILA RIVER INDIAN COMMUNITY, NAVAJO

NATION, SALT RIVER PIMA-MARICOPA

INDIAN COMMUNITY AND SHOSHONE-BANNOCK

TRIBES IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

WILLIAM W. QUINN, JR. JILL ELISE GRANT

SNELL & WILMER (Counsel of Record)

One Arizona Center THOMAS J. PECKHAM

Phoenix, AZ 85004 NORDHAUS, HALTOM,

Counsel for the Salt TAYLOR, TARADASH

River Pima-Maricopa & BLADH, LLP

Indian Community 816 Connecticut Ave., N.W.

Washington, D.C. 20006

(202) 530-1270

Counsel for the Gila River

Indian Community, the

Navajo Nation and the

December 11, 2000 Shoshone-Bannock Tribes

[ Additional counsel listed inside front cover]

Washington, 0.C. © THIEL PRESS + (202) 328-3286

Of Counsel:

RODNEY LEWIS

General Counsel

Gila River Indian Community

P.O. Box 97

Sacaton, AZ 85247

LEVON B. HENRY

Attorney General

BRITT CLAPHAM

Deputy Attorney General

Navajo Nation Department of Justice

P.O. Drawer 2010

Window Rock, Navajo Nation (AZ) 86515

JEANETTE WOLFLEY

1752 N. Elk Road

Pocatello, ID 83204

Counsel for the

Shoshone-Bannock Tribes

Ba ee ot as ER 3 ae

I att ee eT

(?)

QUESTIONS PRESENTED

Section 301(d) of the Clean Air Act (“CAA”), 42

U.S.C. §7601(d), App. 146a-147a, requires the U.S.

Environmental Protection Agency (“EPA”) to promul-

gate a rule specifying the provisions of the CAA for

which it is appropriate to treat Indian tribes in the same

manner as states under the Act, and authorizes such treat-

ment “within the exterior boundaries of the reservation

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

U.S. Court of Appeals for the D.C. Circuit correct in

upholding EPA’s final rule, which is subject to the “‘arbi-

trary and capricious’’ standard of review, where EPA

found:

1. that CAA §7474, App. 141a-146a, which by 1977

already provided that tribes were the only authori-

ties who could “redesignate” lands within “reserva-

tions,” should be interpreted under §7601(d) (added

to the CAA in 1990) to allow tribes to redesignate

not only formal reservations and trust lands but also

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

that CAA §7601(d), which clearly distinguishes

between areas “within the exterior boundaries of

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

jurisdiction,” constitutes a delegation of authority

to tribes to regulate air quality within the reservation,

especially since the legislative history supports this

interpretation and the CAA’s purpose of achieving

and maintaining air quality is best accomplished by

allowing tribes regulatory authority over their entire

territories rather than subjecting those territories to

differing regulatory regimes?

(tt)

LIST OF PARTIES

The following were petitioners in the proceeding in

the U.S. Court of Appeais for the D.C. Circuit, and

join in this petition:

In 98-1203, the National Association of Manufactur-

ers, the Michigan Chemical Council, the Timber Pro-

ducers Association of Michigan and Wisconsin, Inc.,

and the Rhinelander Area Chamber of Commerce, Inc.

In 98-1207, Salt River Project Agricultural Improve-

ment and Power District and Public Service Company

of New Mexico.

. The following were petitioners in the DC. Circuit pro-

ceeding, and do not join in this petition:

In 98-1196, Arizona Public Service Company.

In 98-1203, the American Forest & Paper Association.

In 98-1206, the National Mining Association.

In 98-1207, Nevada Power Company and Tucson Elec-

tric Power Company.

In 98-1208, Oklahoma Gas and Electric Company.

In 98-1209, the State of Oklahoma.

. The following was an intervenor on behalf of peti-

tioners in the D.C. Circuit proceeding, and joins in

this petition:

The State of Michigan

. The following was an intervenor on behalf of petition-

ers in the D.C. Circuit proceeding, and does not join

in this petition:

Central and South West Services, Inc.

(iia)

5. The following was respondent in the D.C. Circuit pro-

ceeding, and is respondent in this proceeding:

The U.S. Environmental Protection Agency.

“ 6. The following were intervenors on behalf of respond-

ent in the D.C. Circuit proceeding, and are respondents

in this proceeding:

The Gila River Indian Community, the Navajo Nation,

the Salt River Pima-Maricopa Indian Community and

the Shoshone-Bannock Tribes.

(wv)

TABLE OF CONTENTS Page

Questions Presented ............0665 TEPeTTI Try

Rae Gir re oo Poa a oats cian ee eee al aad reed

eee Oe eS 6 's-s co oo os ease

ot. .. ¢ f [> ; pee

FUCGUOEINS TUNG: 0 0004060 katedneeasestiweee

Statutory and Regulatory Background ...........

Reasons For Denying The Writ...................

I. THERE IS NO CONFLICT AMUNG THE CIRCUITS

REGARDING THE ISSUES RAISED BY PETI-

PIONERS

il. THE TAR DOES NOT RESULT IN AN ENCROACH.

MENT ON STATE JURISDICTION ..............

A. The TAR Does Not Extend the Scope of

foo fer rr ee ry yer er

|. Tribes have always had jurisdiction

aver tyust GS os 6 06646 2 wee ak seks

2. Petitioners’ fears regarding off-reserva-

tion trust acquisitions are baseless.......

3. Even without an express delegation,

tribes would have jurisdiction to regu-

late air quality over non-Indian fee

lands within their reservations..........

B. The TAR Does Not Expand the Impacts

of Tribal Air Quality Regulation on

tt! Pr rrrrrrrrrrrrrrr rr rrr rrr re i

Ill. THE D.C. CIRCUIT DECISION WAS CORRECT ON

THE MERITS, ESPECIALLY IN LIGHT OF THE

NARROW SCOPE OF REVIEW GOVERNING EPA'S

ACTION AND THE DEFERENCE REQUIRED TO

(v)

BE ACCORDED TO EPA’S INTERPRETATION OF

FEES PPC ey & rr fee 25

A. EPA’s Interpretation of the Redesignation

Provision and of the Term “Reservation”

is Consistent with the Case Law and Prin-

ciples of Statutory Construction and is

SUI OD RNUOUNED bbc cacsrccscccssede 26

B. EPA’s Finding of a Statutory Delegation

Comports with Congressional Intent........ 28

COS a os wd one es da os.0ns 60 hhs04edueeueo ue

RESPONDEN7S’ APPENDIX:

— Corrected Fact Sheet issued by the Bureau

of Indian Affairs, Division of Real Estate

a a 6 we a eek Cee ee A-]

TABLE OF AUTHORITIES

I. CASES:

Alaska v. Native Village of Venetie Tribal Gov't,

522 U.S. 520, 118 S.Ct. 948 (1998)............., 13

Albuquerque v. Browner, 97 F.3d 415 (10th

Cir. 1996), cert. denied, 522 U.S. 965

fc; PPEreer eer er eer eer re Cr re mee 14

Anzona Public Service Co. v. EPA, 211 F.3d 1280

(2000), reh. and reh. en banc denied (July 12,

REPEL ET ET EP ET OTT OTOP Y mre passim

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

amended, 170 F.3d 870 (1999).............. 10-11

Baltimore Gas & Electric Co. v. NRDC, 462 U.S.

ce Pr rrr ome eG gt 25

(vt)

Cases, continued: Page

Brendale v. Confederated Tribes and Bands of

Yakima Nation, 492 U.S. 408 (1989) ......... 21, 28

Bugenig v. Hoopa Valley Tribe, 229 F.3d 1210

co errr oT ere TT Ter ee Te Pee ee 28, 29

Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837

SRUNGNS 6606566654260 0606 ne6bbaReR ONE e ee 25, 27

Citizens to Preserve Overton Park v. Volpe, 401

hs GO CBOE AD 0 600606 cce cee sgesseesendners 25

Commissioner v. Engle, 464 U.S. 206 (1984) ........ 26

Commissioner v. Tufts, 461 U.S. 300 (1983) ........26

DeCoteau v. District County Court for Tenth

Judicial Dist., 420 U.S. 425 (1975). ............. 13

Flonda Dep't of Business Regulation v. United

States Dep’t of the Interior, 768 F.2d 1248

Be le S| PTT Pee eee Cee eee eee 17

HRI, Inc. v. EPA, 198 F.3d 1224 (10th Cir.

CO Pe ee ee ee ee rere eS re ee eee ee 6

McAlpine v. United States, 112 F.3d 1429 (10th

Cir.), cert. dented, 522 U.S. 984 (1997) ....... 17,19

Moe v. Confederated Salish and Kootena Tribes,

oe BS i, | eee ee eee 22-23, 27

Montana v. Blackfeet Tribe, +71 U.S. 759

(| HPT eT eer Cree rr Teererrrerrrery 3 ee

Montana v. United States, 450 U.S. 544

CRUADS c orb cdeneebvesedsencsacncecsessd 9, 20, 21

Oklahoma Tax Comm'n v. Citizen Band Pota-

watom: Tnbe, 498 U.S. 505 (1991) ........ 7,13, 14

(vit)

Cases, continued: Page

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

DOS UG. ERG CIBRS). wee ccc cccccccsccs 7,13, 14

South Dakota v. Dep’t of Interior, 69 F.3d 878

SE a RUE 0 0th s bon k Ane bo 0k 6 6k dae ERO SEM 16-18

Strate v. A-1 Contractors, 117 S.Ct. 1404

os) A eee aan eee 14, 21

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

2 eee Serra e Tice hake eee eae eel 6

United States v. John, 437 U.S. 634

EC CEN Sede y OU evan anak «ona eee 6, 13, 14

United States v. Mazune, 419 U.S. 544 (1975)....... xo

United States v. McGowan, 302 U.S. 535 (1938) ..... 13

United States v. Sandoval, 231 U.S. 28 5) 38 | re 14

United States v. Sohappy, 770 F.2d 816 (9th Cir.

ciumas SUCRE O TET OEE TT rr ae 6

Il. STATUTES

SUBC. S7OR(QWA). «5... ooo ccc ccc cccc cee, 25

18 U.S.C. §1151(a). 0. eee eee cece eee 12, 18, 24-25

RE ae 14

MOUSE. GUNNA)... 6 Siena 14

WB USC. G2701 cf cee. .... 2... occ ccc ceee. 15

25 U.S.C. §46] et seg... ccc ccc ccc ccee. 6

ge le 15,17

ke 14

WOT, BAND. oo. vc bk wear ddccawenvnscc 4, 22

ge oe) 4

Statutes, continued: Page

7 BORN oe OL | rere ee ee eee 23

7 Gl oY) Se ee ee ee ee ee 22

aE TO o>. re rere Pee ee eee 23

eth Tee oe, eer e ere re 5, 10, 24, 26, 27

Oe UE. BPG e a ss he adaes bowen ee dase awe 23, 24

RiP Ve ys rere rrre eT ree er re ere ee ee 23

2 oe Tt OMe yi |. > reer a eer ae 23

SPUSK.. SIGS) 6 vnk cn eds cee wncccevwes passim

G2 UBS. BIGOT) oka bck ine Oa ea sews ree aaee 2,10

M.S.A. 5.295065 1 MD) onc ccc cece ween waseseees 15

III. RULES AND REGULATIONS

23 C.F.R: O151.10fa}ic), fe)... . 05s ccc cw ewicns 18

VES CYA iil ea 18

2 Poe Oe BE Fl EG) Renee a rere ae seer ee 6,18

Be Cae es a a 4 hn eA re ee eee rene ees 6,17

gee we Mee! SG ae erereererar eran 24

52 Fed. Reg. 28112 (July 27, 1987)... ......22000e- 5

53 Fed. Reg. 37896 (Sept. 26, 1968) .............49

54 Fed. Reg. 39098 (Sept. 22, 1989) ............. 4-5

56 Fed. Reg. 64876 (Dec. 12, 1991).............- 5, 22

57 Fed. Reg. 8522 (March 10, 1992) ..............- 5

58 Fed. Reg. 67966 (Dec. 22, 1993)... ......-22200- ~

59 Fed. Reg. 43956 (Aug. 25, 1994). ...........-. 4, 22

63 Fed. Reg. 7254 (Feb. 12, 1998)...........- passim

64 Fed. Reg. 17574 (April 12, 1999) ...........46. 17

(1x)

IV. OTHER AUTHORITIES

S. Rep. No. 100-446, at 5, reprinted in 1988

uatnes TR bac ck awa inca betbenkaskn 15

S. Rep. No. 101-228, 1990 U.S.C.C.A.N.

DE odd 6c dae eae Cee Eee oe ee 3,21

Betty Beard, Guadalupe Dispute Ends, ARI-

ZONA REPUBLIC, October 16, 1999,

| eer ee ere erry reer rrr Te Tee eee Tere Teer 19

Bill Gardner, 7ribe’s Bid for Tax-Free Land

Status Rejected, ST. PAUL PIONEER

PRESS, October §, 1998, at IB... ww ce tcc en 19

Cohen’s Handbook of Federal Indian Law

138 (Strickland et al. eds., 1982 ed.)............. 19

SERIO ST eFC OS ee TER SEN TTORE D

SR ERT

Pd i tt a AS ERD Mp CME Bi AE et eS A coohd tiles

‘“ elias

o MY Fath eR Ain ti Nae De

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Respondents Gila River Indian Community, Navajo

Nation, Salt River Pima-Maricopa Indian Community and

Shoshone-Bannock Tribes respectfully request that this

Court deny the petition for writ of certiorari seeking

review of the decision of the United States Court of

Appeals for the D.C. Circuit in this case. That decision

is reported as Arizona Public Service Co. v. EPA, 211

F.3d 1280 (2000), reh. and reh. en banc dented (July 12,

2000), App. la, 135a, 137a.

STATEMENT OF THE CASE

This case involves review of a rule issued by the

Environmental Protection Agency (“EPA”) pursuant to

the 1990 Amendments to the Clean Air Act (“CAA’’).

On February 12, 1998, EPA promulgated the Tribal

Authority Rule (“TAR”), 63 Fed. Reg. 7254, App. 50a,

in order to comply with CAA §301(d), 42 U.S.C.

§7601(d), App. 146a. Section 7601(d)(1)(A) auth-

orizes the EPA Administrator to “treat Indian tribes as

States” under the CAA, providing that tribes may, but

are not required to, apply to EPA for approval to manage

CAA programs. Section 7601(d) also requires EPA to

promulgate a rule (the TAR) specifying the provisions

of the CAA for which it is appropriate to treat tribes in

the same manner as states, and sets forth the circum-

stances under which such treatment is authorized. In

their petition for a writ of certiorari, petitioners question

two aspects of the TAR: first, EPA’s finding that tribes

may make “‘redesignations” for all areas within their

jurisdiction, not just for reservation areas, and second,

EPA’s interpretation of §7601(d) as a Statutory delega-

tion of authority to tribes to implement air quality pro-

grams within reservations. Petitioners appear to subsume

within these two issues the question of whether the

term “reservation” includes all lands held in trust for f

tribes, including trust lands that have not formally been

declared reservations.

Proceedings Below

Thirteen parties filed six petitions for review chal-

lenging the TAR on six different grounds, itemized in the

D.C. Circuit’s opinion, 211 F.3d at 1283-84, 1286-

87, App. 3a, 9a-10a; the petitions were consolidated,

and two additional parties intervened in the consolidated

proceeding on behalf of petitioners. Since the TAR is

a ‘nationally applicable regulation,” the petitions were

required to be filed in the D.C. Circuit. 42 U.S.C. §7607-

(b). The four Indian tribes filing this brief intervened on

behalf of EPA. Two days before oral argument, petition- )

ers also filed a motion for vacatur and remand of a por-

tion of the TAR. The D.C. Circuit upheld the TAR

on all grounds, stating that “‘We find petitioners’ chal-

lenges to be mostly meritless.”” 211 F.3d at 1284, App.

3a. The decision was unanimous with regard to all issues

except the delegation issue referred to above. Even on

this issue, the dissenting judge agreed that “the 1990

Amendments do contain an express delegation of author-

ity over fee lands and rights of way” and disagreed only

as to which provision of the CAA created that delega-

tion. 211 F.3d at 1301, App. 40a.

Petitions for rehearing and rehearing en banc were :’

denied. Under Fed. R. App. P. 35(a), an en banc rehear-

ing “ordinarily will not be ordered unless: (1) en banc

consideration is necessary to secure or maintain uniform-

ity of the court’s decisions; or (2) the proceeding involves

a question of exceptional importance.

PPS reser Nee co

”

No member of

the court requested a vote as to whether the case should

be reheard en banc. App. 138a. Of the fifteen parties

who challenged the TAR in the D.C. Circuit, only seven

have petitioned this Court for a writ of certiorari.’ Ari-

zona Public Service Company (“APS”), the named peti-

tioner below, is not one of the parties petitioning this

Court; petitioners have replaced APS in the caption with

the State of Michigan, an intervenor below.*

Statutory and Regulatory Background

The “treatment as a state” provision in §7601(d) is

by no means unique. On the contrary, the provision is

one of several provisions added to the Safe Drinking

Water Act (“SDWA”), Clean Water Act (“CWA”) and

CAA in the past 15 years providing a regulatory and

enforcement role for tribes under these environmental

statutes. See Safe Drinking Water Act Amendments of

1986, Pub. L. No. 99-339; Clean Water Act Amendments

of 1987, Pub. L. No. 100-4; Clean Air Act Amendments

of 1990, Pub. L. No. 101-549.3 In particular, “treatment

The State of Oklahoma voluntarily dismissed its petition

for review of the TAR after EPA issued guidance clarifying applica-

tion of the TAR in Oklahoma.

2 Although the State of Michigan appears in the caption,

petitioners’ counsel of record is in fact counsel for the two elec-

tric utility petitioners in this case and not for Michigan. More-

over, no Michigan tribes have intervened in this proceeding, and no

Michigan tribes have received CAA §105 eligibility or other

approvals for CAA programs.

Such amendments were enacted as a result of policies

regarding tribal self-government and government-to-government

consultation and in light of a growing awareness of principles

of federal Indian law. See, e.g., S.R. No. 10J-228 at 79, 1990

U.S.C.C.A.N. 3385, 3465.

4 ‘

as a state’”’ provisions were added to the SDWA and CWA

several years prior to the addition of §7601(d) to the

CAA. SDWA §1451, 42 U.S.C. §300j-11 (added in

1986); CWA §518(e), 33 U.S.C. §1377(e) (added in

1987). All three of these “‘treatment as a state’’ provi-

sions authorize federally recognized tribes to implement

programs under the respective statute, subject to the

approval of EPA and as long as the tribe meets three cri-

teria: the tribe must (1) have a governing body “‘carry-

ing out substantial governmental duties and powers;”

(2) demonstrate jurisdiction with regard to the area over '

which the tribe intends to implement the environmental

program in question; and (3) have the capability to

° . :

implement that program.

The only significant difference between the three .

“treatment as a state’’ provisions relates to the wording

of the jurisdictional requirement. Whereas the SDWA

provides generally for tribal regulation ‘‘within the area

of the Tribal Government’s jurisdiction,” 42 U.S.C. § 300}-

11, and the CWA provides specifically for tribal regula-

tion “within the borders of an Indian reservation,” 33

U.S.C. §1377(e), the CAA provides for both, declaring

that a tribe may regulate “within the exterior bound-

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

jurisdiction,” 42 U.S.C. §7601(d)(2)(B). This distinction

is the basis for the statutory delegation discussed by EPA

in the TAR, upheld by the D.C. Circuit, and raised here

by petitioners.

Not surprisingly, in light of this statutory background,

EPA’s TAR under the CAA is in many respects identical

to the ‘‘treatment as a state’’ rules issued by EPA under

both the CWA and the SDWA.* All these rules lay out

satiate

* Compare 59 Fed. Reg. 43956 (Aug. 25, 1994) (proposed

TAR), 63 Fed. Reg. 7254 (Feb. 12, 1998) (final TAR); 54 Fed.

[footnote continued]

essentially the same criteria that tribes must meet to be

eligible to implement the statutory programs within their

reservations. More specifically, in discussing the juris-

dictional requirement, the rules that define the term

“reservation” interpret it 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.” TAR, 63 Fed. Reg. at 7258, App. 67a.

Accord 56 Fed. Reg. at 64881; 58 Fed. Reg. at 67970,

67976. Thus, one of the main issues raised by peti-

tioners — EPA’s definition of “reservation” — is not

unique to the TAR. The “treatment as a state” rules

under the CWA and SDWA never were challenged in

court,

Petitioners’ other issue concerns EPA’s finding that

CAA §7474, App. 141a-146a, the redesignation provi-

sion, is one of the provisions for which it is appropriate

to treat tribes as states under §7601(d)(2). Section 7474,

added in 1977, already provided for tribal redesignation

of reservations. The TAR extends this authority to

“other areas within the tribe’s jurisdiction,” based on

the language of §7601(d)(2)(B). The D.C. Circuit

found that petitioners’ attempt to argue otherwise

“falls flat.” 211 F.3d at 1295, App. 27a.

EPA’s action in promulgating the TAR under the

CAA, moreover, has nothing whatsoever to do with the

taking of land into trust under the Indian Reorganiza-

Reg. 39098 (Sept. 22, 1989) (proposed rule under CWA §518(e),

regarding § §303, 401), 56 Fed. Reg. 64876 (Dec. 12, 1991) (final

rule); 57 Fed. Reg. 8522 (March 10, 1992) (proposed rule under

CWA §518(e), regarding § §308, 309, 401, 402 and 405), 58 Fed.

Reg. 67966 (Dec. 22, 1993) (final rule); 52 Fed. Reg. 28112 (July

27, 1987) (proposed rule under SDWA §1451), 53 Fed. Reg.

37396 (Sept. 26, 1988) (final rule).

ee ae ee ee

tion Act, 25 U.S.C. §461 et seg. (“IRA”), despite

petitioners’ attempts to confuse and commingle the

two statutes. The taking of land into trust is subject

not only to an entirely different statute but to an |

entirely different regulatory scheme, administered by |

the Department of the Interior, not the EPA. Part .

151 of 25 C.F.R. establishes specific procedures for the

taking of land into trust which require an opportunity for

comment by states and local governments, 25 C.F.R.

§151.11(d), and take a number of factors into account.”

Petitioners’ attempt to conflate these two statutes and

regulatory schemes not only is incorrect but results in

misleading and inaccurate statements and implications in

petitioners’ brief, which respondents are obliged to cor-

rect. Sup. Ct. R. 15.1. Once these misstatements are cor-

rected, it is even more apparent that petitioners do not

raise any issues warranting review by this Court.

First, the TAR does not permit tribes to regulate air

quality over lands that would otherwise be subject to state

jurisdiction, despite petitioners’ implications to the con-

trary. See Pet. Br. at 2,5, 12-13, 20-21. The TAR auth-

orizes tribal regulation of air quality over trust lands

(subject to the conditions set forth in the CAA and the

rule itself). Trust lands have always been viewed as

“Indian country” subject to tribal and federal — but

not state — jurisdiction, as the D.C. Circuit recognized.

211 F.3d at 1294 (citing United States v. John, 437 U.S.

634 (1978); HRI, Inc. v. EPA, 198 F.3d 1224 (10th Cir.

2000); United States v. Azure, 801 F.3d 336 (8th Cir.

1986); United States v. Sohappy, 770 F.2d 816 (9th

Cir. 1985)), App. 25a; accord, Oklahoma Tax Comm’n

5 For example, the distance of a parcel from existing tribal

lands is one factor that can prevent the Secretary of the Interior

from taking land into trust. 25 C.F.R. §151.11(b).

v. Sac & Fox Nation, 508 U.S. 114 (1993); Oklahoma

Tax Comm’n v. Citizen Band Potawatomi Tribe, 498

U.S. 505 (1991). The question of whether a certain par-

cel of land should be taken into trust, pursuant to the

IRA or by legislation, is an entirely different question

which has nothing to do with the CAA and certainly not

with the TAR.

Second, although there are certainly instances of

checkerboarding within reservations, Pet. Br. at 3, this is

far from true of all, or even the majority, of reservations.

Of the approximately 16.5 million acres of reservation

land that comprise the Navajo Indian Reservation, the

Gila River Indian Reservation and the Salt River Indian

Reservation (the reservations of three of the tribal

respondents in this proceeding), less than 1% is fee

land. Of the half million acres that comprise the Fort

Hall Indian Reservation, occupied by the Shoshone-

Bannock Tribes, the fourth tribal respondent, ‘only

about 4% is fee land. Moreover, the Gila River Indian

Community, the Navajo Nation and the Shoshone-Ban-

nock Tribes are among the few tribes which have received

‘treatment as a state’”’ under §105 of the CAA, 42 U.S.C.

§7405, which provides for grants for implementing

tribal air programs. Because of the complexity of CAA

programs and the lack of major sources in Indian coun-

try, it is unlikely that many tribes will submit Section

105 applications, at least in the foreseeable future.

Finally, trust lands typically are not miles from reser-

vations, nor are they proliferating yearly. Pet. Br. at

13. A recent compilation of data on trust lands indicates

40 percent of all trust applications were denied in 1996.°

of Real Estate Services, June 25, 1997 (“BIA Fact Sheet”) at 3,

Respondents’ Appendix (“‘R.App.”) at A-1, A-5.

For the four-year period from 1992 to 1995, a total of

215,000 acres was taken into trust by the Secretary of

the Interior, or an average of less than 54,000 acres a

year, a portion of which was congressionally mandated

and not subject to the discretion of the Secretary.’

However, in 1996 alone, some 130,000 acres passed out

of trust through sales to non-Indians, foreclosures, devise

by testamentary instruments, and other similar means.®

That tribes are now seeking to acquire more trust lands,

largely to fulfill tribes’ objectives of consolidating their

former reservations by purchase and acquisition of non-

Indian fee in-holdings, should be neither surprising nor

cause for concern, despite the alarmist descriptions in

petitioners’ brief.

REASONS FOR DENYING THE WRIT

Under the CAA, review of nationally applicable rules

like the TAR may be heard only in the D.C. Circuit, so

that there can be no conflicts within the circuits regard-

ing the TAR. Petitioners’ claim of a conflict with the

Ninth Circuit regarding EPA’s interpretation in the TAR

of the term “reservation” is therefore unfounded. The

Ninth Circuit was not even aware of the TAR at the time

it issued the decision in question, and in fact remanded

to EPA the question of whether certain lands constituted

“‘reservation”’ under the CAA.

Petitioners’ claim that the TAR divests states of their

rightful jurisdiction is also unfounded. Tribes have always

had regulatory jurisdiction over trust lands, to the exclu-

sion of states; moreover, the TAR, by interpreting “‘reser-

"Id. at 1, R.App. at A-2.

Bid. at 2, R.App. at A-3.

vation” to include such trust lands, reflects existing fed-

eral Indian law. Similarly, tribes have always had regula-

tory jurisdiction over their reservations, and under the

“health and welfare’’ exception in Montana v. United

States, 450 U.S. 544 (1981), tribes have jurisdiction to

regulate air quality over non-Indian fee lands within their

reservations as well. In addition, although the issue is not

in fact raised by this case, there are significant restraints

on the Secretary of the Interior’s discretion to take lands

into trust, as well as limits on a tribe’s authority to redes-

ignate small parcels of land. Finally, the TAR does not

expand the impacts of tribal redesignations on states,

since tribes had the authority to redesignate their reserva-

tions prior to the TAR, and the impacts of any such

redesignations always could extend beyond reservation

boundaries, due to the very nature of air quality regula-

tion. The TAR does not, therefore, result in any exten-

sion of tribal jurisdiction.

The D.C. Circuit’s decision also was correct on the

merits, especially in light of the limited scope of review

of EPA’s rule. EPA’s interpretation of the redesignation

provision as extending to all areas of a tribe’s jurisdiction

is consistent with the CAA and entitled to deference.

Likewise, EPA’s interpretation of the term “‘reservation”’

is consistent with an extensive body of case law and is

entitled to deference. EPA’s interpretation of the CAA

as a statutory delegation of regulatory authority to tribes

within their reservations comports with the statutory

language and purposes and with legislative intent.

THERE IS NO CONFLICT AMONG THE CIRCUITS RE-

GARDING THE ISSUES RAISED BY PETITIONERS.

As petitioners themselves point out, Pet. Br. at 12,

there can be no conflict among the circuits regarding the

TAR because the CAA provides for review of all nation-

ally applicable rules and other final actions in the D.C.

Circuit. 42 U.S.C. §7607(b)(1). Petitioners then tum

around and claim that EPA’s interpretation of “‘reserva-

tion” in the TAR, which the D.C. Circuit upheld, con-

flicts with the Ninth Circuit’s decision in Arizona v.

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

F.3d 870 (1999). Pet. Br. at 21. In fact, the court in

Anzona did not reach the question of what constitutes

a reservation, nor did it consider any aspect of the TAR.

The Anzona decision involved a challenge to an EPA

approval of a request from the Yavapai-Apache Tribe for

redesignation of its reservation under CAA §7474, App.

I4la. Petitioners in that case stipulated that a particular

parcel of land (the ‘‘Middle Verde” parcel) constituted a

reservation, but disagreed as to four other parcels for

which the tribe sought redesignation. The Anzona court

stated that there was “‘insufficient evidence in the record

to support a finding that these parcels have been declared

to be reservations ... or... have been added to the Mid-

dle Verde reservation by proclamation.” 151 F.3d at

1210. Petitioners argue that because the lands in ques-

tion were trust lands, the court must have ruled that trust

land may not be considered reservation land. In fact, ;

however, the court refrained from making any ruling

with regard to these parcels, instead remanding to EPA

“to determine whether the parcels are reservations.” 170 ,

F.3d at 870.

It is also abundantly clear that the Ninth Circuit in

Arizona did not consider EPA’s interpretation of “reser-

vation”’ in the TAR, since the court was unaware that

EPA had promulgated the rule. Jd. at 1212 (“EPA has

failed to act as directed by Congress to promulgate [the

TAR]”).?

Moreover, the dissent, which would have reached a

decision on the reservation issue, noted that EPA’s deter-

mination that the land was part of a reservation was con-

sistent with judicial precedent that trust lands may be

considered reservation. The dissent then stated, ‘“‘Given

these decisions, the EPA’s determination that the Tribe’s

lands were reservations is permissible and should be

explicitly upheld.’’” 151 F.3d at 1214. This statement is

consistent with the D.C. Circuit decision below; indeed,

the dissenting judge relied on two of the same cases cited

by the D.C. Circuit.

Il.

THE TAR DOES NOT RESULT IN AN ENCROACHMENT

ON STATE JURISDICTION.

In an effort to justify the grant of a writ in this pro-

ceeding, petitioners attempt to elevate the importance of

this relatively routine administrative rulemaking to the

level of a crisis by misconstruing EPA’s action as a

dramatic departure from existing precedent and a signif-

icant threat to states. In fact, the TAR does not signifi-

cantly alter the extent of tribal jurisdiction; rather, it

reflects the existing state of federal Indian law. Moreover,

the TAR does not expand the impacts of tribal air quality

regulation: the very nature of air quality means that reg-

ulations will have impacts on bordering jurisdictions,

IEPA had in fact recently issued the rule, but for whatever

reason this seems to have been overlooked by the court.

whether it be tribal impacts on states, state impacts on

tribes, or state impacts on other states, as petitioners

themselves point out. Pet. Br. at 14-15.

A. The TAR Does Not Extend the Scope of Tribal

Jurisdiction.

In the final analysis, the TAR does not give tribes jur-

isdiction that they would not have under existing prece-

dent of this Court. Off-reservation lands held in trust for

tribes have been determined by the courts to be “Indian

country” under 18 U.S.C. §1151(a) (‘‘all land within

the limits of any Indian reservation”), and therefore sub-

ject to tribal (and federal) regulation. Petitioners claim

that such jurisdiction will encroach substantially on states,

but in reality there are adequate protections not only in

the CAA and the TAR but also in the regulations control-

ling fee-to-trust transfers to ensure that states will not be

affected unduly. Finally, tribal jurisdiction over air qual-

ity within a reservation’s boundaries, including non-Indi-

an fee lands, is consistent with this Court’s precedent.

1. Tribes have always had jurisdiction over trust

lands.

Based on the precedent of this Court and enactments

of Congress, it is indisputable that Indian tribes have reg-

ulatory jurisdiction over lands held in trust for them by

the United States, regardless of whether those lands are

inside or outside the boundaries of any “‘formal”’ reserva-

tion. In addition, this Court has specifically found that »

trust lands are equivalent to “reservation” under §1151-

(a). Accordingly, EPA’s decision to include those lands

within the definition of “reservation”? in the CAA is

consistent with federal Indian law as interpreted by

this Court.

MITRE ORS

Petitioners concede that tribal regulatory authority

extends over “Indian country,” and that this term is

defined by §1151. Pet. Br. at 3. Section 1151 provides:

“(T]he term ‘Indian country’ . .. means (a) all land

within the limits of any Indian reservation under the

jurisdiction of the United States Govemment... ,

(b) all dependent Indian communities within the

borders of the United States whether within the orig-

inal or subsequently acquired territory thereof, and

whether within or without the limits of a state, and

have not been extinguished, including rights-of-way

running through the same.’’!°

This Court has found that trust land, which significantly

is not mentioned separately under any of the three cate-

gories in §1151, is equivalent to an “informal reserva-

tion” and thus included within §1151(a). Thus in both

Potawatomi Tribe and Sac & Fox Nation the Court ex-

plained that for purposes of determining what is “Indian

Country,” there is no distinction between trust land and

a formal reservation. In rejecting Oklahoma’s claim that

the state could tax sales to tribal members on trust lands

that were not part of a formal reservation, the Court in

Potawatomt Tribe stated, ‘[W]e ask whether the area

has been ‘validly set apart for the use of the Indians as

such, under the superintendence of the Government.’

[United States v. John, 437 U.S. 634], at 648-649; see

also United States v. McGowan, 302 U.S. 535, 539

(1938)."!! Potawatomi Tnbe, 498 U.S. at 511. Eluci-

10 as petitioners note, Pet. Br. at 3n.1, the definition applies

to civil as well as criminal jurisdiction. E.g., DeCoteau v. District

County Court for Tenth Judicial Dist., 420 U.S. 425, 427 n.2

(1975); Alaska v. Native Village of Venetie Tribal Gov’t, 522 U.S.

520, 118 S.Ct. 948, 952 (1998).

11 There is no basis for attempting to distinguish lands taken

into trust by the Secretary of Interior under 25 U.S.C. §465 and

[footnote continued]

dating the reasoning in Potawatomi Tribe, the Court

in Sac & Fox Nation stated, ‘‘We noted that we have

never drawn the distinction [between formal reservations

and other lands held in trust] Oklahoma urged.”!? 508 i

U.S. at 125. Instead, in both cases the Court found the |

trust land in question to be “reservation”’ under §1151- “

(a) and subject to tribal jurisdiction. Sac & Fox, 508

U.S. at 123; Potawatomi Tribe, 498 U.S. at 511; accord

United States v. John, 437 U.S. 634, 649 (1978); see also

Strate v. A-1 Contractors, 117 S.Ct. 1404, 1413 & n.8

(1997) (finding “tribal land” to include lands ‘‘held by

the United States in trust for the Tribe’’).

Numerous statutes support the conclusion that Con-

gress also considers trust land to be within a tribe’s juris-

diction. For example, as the Court pointed out in Sac

& Fox Nation, Congress in Pub. L. 280, 28 U.S.C. §1360,

required some states to assume, and gave others the

option of assuming, civil jurisdiction ‘“‘in the areas of

Indian country situated within such State.”’ 25 U.S.C. §§

1321(a), 1322(a). See Sac & Fox Nation, 508 US. at

other trust lands, as petitioners attempt to do. Pet. Br. at 20-21.

Whether taken into trust by Congress directly, or indirectly through

the Secretary, trust land is “‘set apart for the use of the indians as

such, under the superintendence of the Government.”

12 Oklahoma, with its collection of “informal”’ reservations,

is not the only state in which the limitation of tribal jurisdiction to

only “formal” reservations would have a profound effect. In New

Mexico, for example, many of the Pueblo lands date back to Span-

ish land grants and are not formal reservations despite predating

the United States. They have nevertheless been considered reserva- A

tions. See United States v. Sandoval, 231 U.S. 28 (1913); see also

Albuquerque v. Browner, 97 F.3d 415, 423 (10th Cir. 1996) (con- .

cluding that Pueblo’s ‘powers inherent in Indian tribal sover- j

eignty” were sufficient to give it regulatory jurisdiction over water

quality on Pueblo lands, and construing the Clean Water Act

accordingly), cert. dented, 522 U.S. 965 (1997).

125. It would be nonsensical for Congress to have given

States the opportunity to assume something they already

had. See also Indian Child Welfare Act, 25 U.S.C. §1903-

(10) (defining “reservation” to include all Indian country

under §1151 and any trust lands and Indian lands sub-

ject to restraints against alienation that are not already

covered under §1151).

In the Indian Gaming Regulatory Act, 25 U.S.C.

§2701 et seq., Congress wrestled with how much auth-

ority states should be given over the hotly contested area

of Indian gaming on Indian lands. For the purpose here,

it is most relevant that Congress started with the assump-

tion that absent congressional action, tribes would have

regulatory jurisdiction over their lands, including trust

lands: “It is a long- and well-established principle of Fed-

eral-Indian law as expressed in the United States Con-

stitution, reflected in Federal statutes, and articulated in

decisions of the Supreme Court, that unless authorized

by an act of Congress, the jurisdiction of State govern-

ments and the application of state laws do not extend to

Indian lands.” S. Rep. No. 100-446, at 5, reprinted

in 1988 U.S.C.C.A.N. 3071, 3075. ‘‘Indian lands”’ are

defined in the IGRA to include existing trust lands, 25

U.S.C. §2703(4)(B).

Finally, it is interesting to note that the State of Mich-

igan, the lead petitioner before the Court, also recognizes

tribal jurisdiction over off-reservation trust lands. For

example, in a Michigan statute relating to Indian Housing

Authorities, the definition of ‘Indian reservation’’ is

illuminating: “* ‘Indian reservation’ means an Indian com-

munity which has land held in trust for the Indian com-

munity by the federal or state government, or a locai unit

of government, or which owns the land in its own name.”

M.S.A. 5.2950(51)(b).

Both the precedents of this Court and enactments by

Congress make it clear that lands held in trust for Indians

by the United States are equivalent to “reservation,” and

are subject to tribal regulatory authority. Accordingly,

tribes have always had the ability to regulate air quality

on those lands, and the TAR is completely consistent

with existing law in this regard.

2. Petitioners’ Fears Regarding Off-Reservation

Trust Acquisitions Are Baseless.

In their attempt to make this case appear worthy of

granting the writ, petitioners paint a picture in which the

Secretary of the Interior is taking far-flung lands into

trust indiscriminately, without any curb on his discretion.

There is simply no basis in fact or law for this portrayal.

First, the petitioners try to revive the bogeyman of an

Eighth Circuit divided-panel decision in 1995. In South

Dakota v. Dep’t of Interior, 69 F.3d 878 (8th Cir. 1995),

the majority held that §5 of the IRA, 25 U.S.C. §465,

App. 148a-149a, was an unconstitutional delegation of

congressional authority because it lacked sufficient con-

straints on the Secretary’s discretion. The court went so

far as to comment that §465 “would permit the Secretary

to purchase the Empire State Building in trust for a tribal

chieftam as a wedding present.” 69 F.3d at 878. This

Court granted certiorari but then vacated the Eighth Cir-

cuit opinion and remanded in light of a newly promul-

gated regulation providing a thirty-day waiting period

during which parties could challenge a trust acquisition

approval. 519 U.S. 919.

South Dakota is simply irrelevant to this case. There

is no trust acquisition that has been challenged. There

is not even a particular piece of “IRA trust land”’ at

issue that is upsetting the petitioners. It would be extra-

ordinary for this Court to grant certiorar’ because ofa

question that is not presented. Even if petitioners were

right about the “horrors” of §465, the proper course

would be to wait until the issue arises in a challenged

trust land acquisition, not in a rulemaking by an agency

that does not even administer the statute in question.!

The petitioners are not right, however, about the

effects of §465. First, in a well-reasoned opinion, the

Tenth Circuit found that the regulations implementing

§465 provide sufficient “law to apply” so that judicial

review is available. McAlpine v. United States, 112 F.3d

1429 (10th Cir.), cert. denied, 522 U.S. 984 (1997). This

decision makes it appear likely that the delegation issues

in South Dakota will be resolved without the need for

action by this Court.!*

Second, the regulations issued by Interior impose sig-

nificant constraints on trust acquisitions for tribes, con-

trary to petitioners’ claims. Pet. Br. at 20. For off-reser-

vation trust acquisitions, the Secretary must provide

notice to local and state governments giving them 30 days

to comment, 25 C.F.R. §151.11(d). In addition, the

rules provide:

13 Even were the delegation doctrine question presented here,

there would be an additional reason for the Court’s refusing to

address the issue now. The BIA is expected to issue a revised 25

C.F.R. Part 151 within the next several months. See proposed

rule, 64 Fed. Reg. 17574 (April 12, 1999). The final rule is

almost certain to constrain the Secretary’s discretion even further.

It 4 pre-South Dakota case, Florida Dep't of Business

Regulation v. United States Dep’t of the Interior, 768 F.2d 1248

(11th Cir. 1985), had found judicial review unavailable and the

Secretary’s discretion unconfined. The McAlpine court’s rea-

sons for disagreeing with the Florida Dep't of Business Regulation

case are compelling and presumably will be adopted by other cir-

cuits, including the Eleventh, that confront the issue.

The location of the land relative to state boundaries,

and its distance from the boundaries of the tribe’s

reservation, shall be considered as follows: as the

distance between the tribe’s reservation and the land

to be acquired increases, the Secretary shall give

greater scrutiny to the tribe’s justification of antici-

pated benefits from the acquisition. The Secretary

shall give greater weight to the concems raised [by

state and local governments].

25 C.F.R. §151.11(b). Moreover, the Secretary must |

consider the statutory authority for the acquisition, the |

need for the land, the purpose of the acquisition, the tax

impact on state and local government, resulting jurisdic-

tional problems, the BIA’s ability to discharge its respons-

ibilities if the acquisition is made, and NEPA compliance.

25 C.F.R. §§151.11(a), 151.10(a)-(c), (e)-(h). These are

real constraints on the Secretary’s discretion and should

put the petitioners’ claims in perspective, especially since

the regulations require increased scrutiny of applications

for lands at a distance from reservations.!°

ana at ale es Oe iat.

Data bear out that petitioners’ fears are baseless. As

mentioned above, 40 percent of trust land applications

were denied in 1996, the most recent year for which

information is available. For example, the Pascua

Yaqui Tribe’s application to have 23 acres in the Town of

Guadalupe, Arizona taken into trust was ultimately with-

drawn after the Town Council objected, even though the

Tribe intended only to provide medical facilities and

housing for tribal members, who make up 40 percent of

5-The IRA itself also imposes constraints on the Secretary's

discretion. See South Dakota, 69 F.3d at 887-88 (Murphy, J.,

dissenting).

l6RIA Fact Sheet, R. App. at A-5.

ential

the Town’s population.!’ Near Minneapolis, the regional

director of the BIA denied a trust acquisition request by

the Shakopee Mdewakanton Sioux Community after

objections by state and local officials. As one of his rea-

sons, the regional director explained that trust status for

the land was not necessary for the tribe’s economic

health.!® As a final example, the trust acquisition request

at issue in McAlpine was denied in part because the land

was not close to the relevant reservation and agency, and

because there was insufficient justification for removing

the land from local tax rolls. 112 F.3d at 1436-37.

While the BIA does not keep statistical data on whether

trust applications and acquisitions are on- or off-reserva-

tion, these examples, coupled with the 40 percent denial

rate and the regulatory factors, indicate that the peti-

tioners grossly overstate their allegations regarding use

of the Secretary’s discretion to take land into trust far

from reservations. While tribes understandably are eager

to recover a small portion of the over 90,000,000 acres

of trust land they lost between 1887 and 1934, Cohen’s

Handbook of Federal Indian Law 138 (Strickland et al.

eds., 1982 ed.), the vast majority of successful trust

acquisitions are non-controversial.

Thus, trust acquisitions for tribes are simply not a

major concem, factually or legally. The petitioners’

attempt to bootstrap a mundane rulemaking into a cert-

worthy issue by using an inflated descnption of an issue

the Court likely will never need to confront is neither

appropriate nor persuasive. In fact, tribes gain modest

17 Betty Beard, Guadalupe Dispute Ends, ARIZONA REPUB-

LIC, October 16, 1999, at Bl

18 Bin Gardner, Tribe’s Bid for Tax-Free Land Status Re-

jected, ST. PAUL PIONEER PRESS, October 8, 1998, at 1B.

amounts of much-needed land through off-reservation

trust acquisitions, and they have the right under federal

Indian law to regulate that land. The EPA did nothing

new in the TAR, and petitioners’ protests to the contrary

are misplaced.

3. Even without an express delegation, tribes would

have jurisdiction to regulate air quality over

non-Indian fee lands within their reservations.

EPA interprets the CAA as a statutory delegation of

authority to tribes to regulate all areas within their reser-

vations, including non-Indian fee lands. Even apart from

this statutory delegation, however, tribes already have the

inherent authority to regulate air quality within their

reservations, under well-established principles of federal

Indian law, discussed above. In addition, tribes most

likely would have the inherent authority to regulate the

air quality of non-Indian fee lands within their reserva-

tions, under the second exception in Montana v. United

States. The CAA’s statutory delegation obviates the need

for tribes to demonstrate this inherent authority over fee

lands under Montana, but does not as a practical matter

extend the scope of a tribe’s authority.

Reservations are one of the categories of “Indian coun-

try,”’ see 18 U.S.C. §1151(a), and as such there is no

question as to a tribe’s inherent authority to regulate res-

ervation lands for air quality purposes. When a tribe does

not do so, the jurisdiction to regulate falls not to the

states but to the federal government. Thus EPA provides

in the TAR for federal implementation of CAA programs

in instances where tribes are not already administering

those programs. 63 Fed. Reg. at 7262-63, App. 85a-90a.

See also S. Rep. No. 101-228 at 80, 1990 U.S.C.C.A.N.

at 3466 (‘This provision also confirms the Agency’s obli-

gation and responsibility to enforce the Act in Indian

Country should a tribal government choose not to assume

primary enforcement responsibility”). There is therefore

no room for state regulation of reservation land, regard-

less of the TAR.

Tribal authority over non-Indian fee land within reser-

vations is, in contrast, limited. Montana; see also Strate.

The Court in Montana provided two exceptions to this

limit on tribal jurisdiction, however, the second of which

controls here: the Court held that a tribe may exercise

regulatory jurisdiction ‘‘over the conduct of non-Indians

on fee lands within its reservation when that conduct

threatens or has some direct effect on the political integ-

rity, the economic security, or the health or welfare of

the tribe.” 450 U.S. at 566. The <n of air qual-

ity clearly falls within this exception.!

Indeed, it is difficult to imagine any matter subject to

regulation that has a greater impact on the surrounding

environs. If tribes are not able to ensure the “health or

welfare” of their on-reservation members through regu-

lation of air quality, it is hard to imagine what would

qualify under the “health or welfare” prong of the sec-

ond exception. The entire purpose of air quality regu-

lation is health and welfare. Unlike zoning, air quality

demands unified treatment over a geographic area. Cf.

Brendale v. Confederated Tribes and Bands of Yakima

Nation, 492 U.S. 408 (1989) (split decision allowing

19 the first exception — that a tribe has jurisdiction over a

nonmember who has a consensual relationship with the tribe —

may also be relevant in some instances where air quality regulation

is concerned.

tribes to zone non-Indian lands within “closed,” but not

“open,” portion of reservation).”

The delegation in the CAA therefore does not change

the result regarding tribal regulation. As EPA itself

points out,

Even without this .. . direct grant of authority,

Indian tribes would very likely have inherent author-

ity over all activities within reservation boundaries

that are subject to CAA regulation. The high mobil-

ity of air pollutants, resulting area-wide effects, and

the seriousness of such impacts, would all tend to

support Tribal inherent authority.

59 Fed. Reg. at 43958. See also EPA’s Final Rule under

CWA §1377(e), in which EPA states that “the activities

regulated under the various environmental statutes gen-

erally have serious and substantial impacts on human

health and welfare.” 56 Fed. Reg. at 64878. The TAR

therefore is not the radical departure from existing law

that the petitioners would have the Court believe.

Nor is there any merit to petitioners’ argument that

this delegation divests states of their authority in viola-

tion of CAA §116, 42 U.S.C. §7416. In the first place,

states never had the authority to regulate tribal lands, as

discussed above. Equally importantly, even if CAA

§7601(d) were inconsistent with §7416, it was enacted

long after §7416 and therefore would supersede it. £.g.,

Montana v. Blackfeet Tribe, 471 U.S. 759 (1985) (1938

Mineral Leasing Act overrode 1924 Act); Moe v. Confed-

20 Only water quality may have a similar effect on the health

or welfare of a tribe and, significantly, in its treatment as a state

rule under the CWA, EPA found the Act to be “a legislative deter-

mination that activities which affect surface water and critical hab-

itat quality may have serious and substantial impacts.” 56 Fed.

Reg. at 64878. In other words, EPA implied that any Montana

showing required under the CWA would be a mere formality.

erated Salish and Kootenai Tribes, 425 U.S. 463, 472

(1976) (jurisdictional provisions of 28 U.S.C. §1362

overrode restrictions of §1341). See also United States

v. Mazune, 419 U.S. 544, 554 (1975) (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’’).

B. The TAR Does Not Expand the Impacts of

Tribal Air Quality Regulation on States.

Petitioners also complain that tribal redesignations of

tribal land will affect development on state lands, but this

is a result of air quality regulation in general, not a result

of the TAR. Since the air s not confined by political

boundaries, and because of the high mobility of air

pollutants and resulting area-wide effects of such pollut-

ants, see 59 Fed. Reg. at 43958, n.5, regulation by one

jurisdiction will unavoidably have impacts on neighbor-

ing jurisdictions, as petitioners themselves recognize.

Indeed, the occurrence of interstate (and tribal-state)

impacts from air quality regulation is specifically recog-

nized in the Clear Air Act: the Act provides for the

establishment of interstate transport regions and com-

missions, 42 U.S.C. §§7506a, 7611c(a) and visibility

transport regions and commissions, §7492, to address

just such transboundary impacts from air pollutants. In

addition, the Act allows states to petition EPA to address

the effects of pollution emitted from other states, § 7426,

and even provides for cooperation on international

effects from air pollution, §7415. All the TAR does is to

expand these provisions to apply to tribes as well as

states.2! In doing so, the TAR makes clear that states are

far from ‘“‘powerless” to address transboundary impacts

from tribes, Pet. Br. at 16, since these provisions estab-

lish mechanisms for states to work with tribes on such

issues, just as they do with other states.

Moreover, petitioners need have no fear of tribes redes-

ignating isolated parcels of land from Class II to Class I.

First, before any area may be redesignated, notice must

be provided and public hearings conducted in all affected

areas and a description and analysis of the impacts of the

proposed redesignation must be prepared. 42 U.S.C.

§7474; 40 C.F.R. §51.166(g)(2). If there are any dis-

putes between states and tribes regarding a proposed

redesignation, the state or tribe may request the Adminis-

trator to conduct negotiations to resolve the dispute.

§7474(e). In doing so, the Administrator must “‘consider

the extent to which the lands involved are of sufficient

size to allow effective air quality management or have air

quality related values of such an area,” td., making peti-

tioners’ fears unlikely to occur.

Finally, it was the 1977 amendments to the CAA

which allowed tribes to redesignate their reservations,

under §7474(c). Section 7601(d) and the TAR therefore

did not create this authority. The TAR simply clarifies

that this tribal authority extends to all lands within a

tribe’s jurisdiction, which may extend beyond the bound-

aries of a formal reservation. By its own terms, states do

not have jurisdiction over lands ‘“‘within the tribe’s juris-

diction.”” Moreover, states never had the authority to

redesignate reservation lands, since such lands always

were within Indian country, as defined by 18 U.S.C.

21 For example, the Grand Canyon Visibility Transport Com-

mission established under § 7492 was expanded to include tribal

representation.

§1151, which even petitioners concede defines tribal

jurisdiction. Pet. Br. at 3 andn.1l. See also discussion in

Part A above. There is therefore nothing unique about

the TAR in this regard, nor does the TAR place any

extra burdens on the states.

Ill.

THE D.C, CIRCUIT DECISION WAS CORRECT ON THE

MERITS, ESPECIALLY IN LIGHT OF THE NARROW

SCOPE OF REVIEW GOVERNING EPA’S ACTION AND

THE DEFERENCE REQUIRED TO BE ACCORDED TO

EPA’S INTERPRETATION OF THE STATUTE.

EPA’s rulemaking is reviewable under the Administra-

tive Procedures Act, 5 U.S.C. §706(2)(A). The D.C. Cir-

cuit therefore was required to uphold the TAR unless it

found the rulemaking “‘arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with the law.”’

This is a narrow standard of review, under which the

court is not empowered to substitute its judgment for the

agency’s, but must uphold the agency’s reasonable deci-

sions. E.g., Balttmore Gas & Electric Co. v. NRDC, 462

U.S. 87, 104-05 (1983); Citizens to Preserve Overton

Park v. Volpe, 401 U.S. 402, 416 (1971). In addition, in

reviewing EPA’s interpretation of the CAA, the court cor-

rectly employed a Chevron analysis, which required it to

accord deference to the agency where the statute was

ambiguous. 211 F.3d at 1287, App. 54a, citing Chevron

U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-43 (1984). In

light of these standards and the underlying reasonable-

ness of EPA’s action, the D.C. Circuit was correct in

upholding the TAR.

A. EPA’s Interpretation of the Redesignation Pro-

vision and of the Term ‘‘Reservation”’ is Con-

sistent with the Case Law and Principles of

Statutory Construction and is Entitled to

Deference.

Petitioners’ contest EPA’s interpretation of 42 U.S.C.

§ 7474, the redesignation provision, as allowing tribes to

redesignate areas of tribal jurisdiction outside formal

reservation boundaries. Section 7474(c) states that

“{l]ands within the exterior boundaries of reservations

of federally recognized Indian tribes may be redesignated

only by the appropriate Indian governing body.” As the

D.C. Circuit stated, ‘“‘[a] ll §7474(c) establishes, however,

is the exclusive power of Indian tribes to redesignate land

within a reservation; it dees not address the inherert

power of tribes to redesignate land in nonreservation

areas.” 211 F.3d at 1295, App. 27a. EPA therefore

looked to §7601(d)(2), the provision governing tribal

authority under the CAA, and that provision specifically

states that treatment as a state is authorized if “‘the func-

tions 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 jurtsdiction.’”’ (Emphasis supplied.)

EPA therefore provided in the TAR that tribes have the

authority to redesignate all lands “within the tribe’s jur-

isdiction,’’ provided they meet both the eligibility cri-

teria in §7601(d)(2) and the redesignation criteria in

§7474(c).

EPA’s interpretation of the Act was perfectly reason-

able, and also followed principles of statutory construc-

tion by harmonizing the provisions of the statute. Com-

missioner v. Engle, 464 U.S. 206, 217 (1984); Commis-

stoner v. Tufts, 461 U.S. 300, 314 (1983). The D.C.

NY RIE Ni tow Nets i

Circuit was therefore correct to uphold it. To the extent

there is any ambiguity in the statute, moreover, the D.C.

Circuit was required to accord deference to EPA’s inter-

pretation under Chevron. Petitioners urge the narrowest

possible reading of §7474, but this violates the principle

that ‘‘statutes should be construed liberally in favor of

the Indians, with ambiguous provisions interpreted to

their benefit.” E.g., Montana v. Blackfeet Tribe, 471 U.S.

at 766.

Even if the language of §7474(c) were inconsistent

with §7601(d), moreover, §7474(c) was added to the

CAA in 1977, whereas §7601(d) was added in 1990.

The jurisdictional language in §7601(d) would therefore

supersede the language of §7474(c). E.g., Montana v.

Blackfeet Tribe; Moe v. Confederated Salish and Koot-

enat Tribes.

Section 7474(c) would extend to trust lands in any

event by virtue of EPA’s separate finding that the term

“reservation” includes trust lands outside formal reser-

vation boundaries. Petitioners contend that the term

“reservation” as used in the CAA is not ambiguous, and

thus that EPA’s interpretation is not entitled to defer-

ence. This argument is totally spurious, however, since

the term is not defined anywhere in the CAA, and the

“varying definitions of ‘reservation’ [in other federal

statutes] lay to waste petitioners’ argument.” 211 F.3d

at 1293, App. 24a. EPA’s interpretation is supported by

an extensive body of case law, as discussed in the D.C.

Circuit’s opinion.

; 28

B. EPA’s Finding of a Statutory Delegation Com-

ports with Congressional Intent.

In the matter below, the D.C. Circuit found that:

The [CAA]’s clear distinction between areas ‘‘with-

in 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 res-

ervation 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.

211 F.3d at 1288, App. 13a. The D.C. Circuit also found

that this interpretation was confirmed by “the stat-

ute’s . .. purpose, and legislative history.” Jd. at 1288,

1288-89, App. 12a, 13a-1"a. In addition, as the D.C. Cir-

cuit noted, another federal court has observed that sim-

ilar language in Clean Water Act §1377(e) regarding

tribal jurisdiction over reservation land “‘seems to indi-

cate plainly that Congress did intend to delegate...

authority to tribes.” Jd. at 1291, App. 2la, citing

Montana v. EPA, 941 F. Supp. 945, 951 n.10 & n.12

(D. Mont. 1996). This Court itself has suggested the

same. Brendale v. Confederated Tribes and Bands of the

Yakima Indian Nation, 492 U.S. 408, 426-28 (1989)

(White, J., for the four-justice plurality). The D.C. Cir-

cuit thus had every reason to find that ‘“‘EPA’s interpre-

tation comports with congressional intent.” 211 F.3d

at 1288, App. 12a.

The Ninth Circuit’s decision in Bugentg v. Hoopa Val-

ley Tribe, 229 F.3d 1210 (2000), is not to the contrary.

Although that court opines that certain language (the

“notwithstanding proviso”) may be read automatically as

an express delegation, it acknowledges that other lang-

uage may also constitute a statutory delegation, and

simply would require further examination. Jd. at 1219.

The D.C. Circuit conducted just such an examination,

and found §7601(d)(2) to meet the requirements of a

statutory delegation.2* Moreover, the D.C. Circuit deter-

mined that EPS’s finding of a statutory delegation was

consistent with the purpose of the CAA to “ensure

effective enforcement of clean air standards” and to dis-

courage checkerboard jurisdiction within reservations,

and also was supported by the legislative history. 211

F.3d at 1288-89, App. 13a-15a. See also 63 Fed. Reg. at

7254-55, App. 54a-55a (interpretation of §7601(d)

as delegation is supported by territorial approach in CAA

to air quality regulation and by legislative history); cf.

56 Fed. Reg. at 64878 (‘‘because of the mobile nature of

pollutants in surface waters . . . it would be practically

very difficult to separate out the effects of water qual-

ity impairment on non-Indian fee land within a reser-

vation with those on triabal portions”’). In Bugenig, the

court found no support for a delegation in the purpose or

legislative history of the statute in question. 229 F.3d at

1215.

22 The court in Bugenig, in contrast, was faced with a statute

that “contains no explicit authorization of jurisdiction, but simply

incorporates by reference tribal documents,” id. at 1219, and thus

“does not even reflect on its face any congressional consideration

of the proper scope of tribal authority.”” id. at 1218; see also id.

at 1215 (‘‘The fact that nothing in the Settlement Act itself explic-

itly confers upon the Tribe jurisdiction to regulate nonmembers

raises serious questions as to how carefully Congress considered

whether it was making any grant of regulatory authority to the

Tribe”’).

CONCLUSION

The TAR reflects a reasonable interpretation of the

CAA, is consistent with existing federal law and raises

no issues of extraordinary importance. The petition for

a writ of certiorari should therefore be denied.

Respectfully submitted,

WILLIAM W. QUINN, JR. JILL ELISE GRANT

Counsel for the Salt (Counsel of Record)

River P1ma-Mancopa THOMAS J. PECKHAM

Indian Community Counsel for the Gila River

Indian Community, the

Navajo Nation und the

Shoshone-Bannock Tribes

RODNEY LEWIS

Gila River Indian

Community

LEVON B. HENRY

Britt CLAPHAM

Navajo Nation

Department of Justice

JEANETTE WOLFLEY

Counsel for the

Shoshone-Bannock Tribes

December 11, 2000

he sy

A-1

RESPONDENTS’ APPENDIX

UNITED STATES DEPARTMENT OF THE INTERIOR

BUREAU OF INDIAN AFFAIRS

WASHINGTON, D.C. 20245

[SEAL]

CORRECTED FACT SHEET

This corrected fact sheet corrects the figures used in ques-

tion eight of the fact sheet prepared by the Bureau of

Indian Affairs, Division of Real Estate Services, dated

June 20, 1997, and revises question six.

1. How many acres are held in trust or restricted status

on behalf of Indian tribes and individuals?

Nationwide there are approximately 54 million acres of

land held in trust or restricted status. This data was

obtained from the Bureau of Indian Affairs’ (BIA)

Annual Report of Indian Lands published in September

1985.

The BIA is currently in the process of compiling the

Annual Report of Indian Lands for 1996. This report

should be completed by September 1997. Preliminary

computations from data furnished by the BIA’s 12 Area

Offices indicate that for the period 1985, the date of the

BIA’s last Annual Report, to the end of calendar year

1995 that there was an increase of approximately 2.7

million acres nationwide of trust lands over a ten year

period. For the ten year period, this approximates

270,000 acres per year. This figure includes trust acquisi-

tions that were congressionally mandated.

A-2

2 What is the difference between land held in trust for

a tribe or individual Indian and land held in a restricted

status for a tribe of individual Indian?

The title to trust land is held by the United States of

America for the use and benefit of the tribe or individual

Indian. Legal ownership cf the title is vested with the

United States and is not subject to taxation.

The title to restricted land is held by the tribe or individ-

ual Indian subject to the restriction that it cannot be

alienated or encumbered without the consent of the

Secretary. Legal ownership of the title is with the tribe

or individual Indian and in a majonity of the cases is sub-

ject to taxes, Le. gross production taxes on oil and gas

derived from restricted lands owned by the Osage and

Five Tnbes of Oklahoma (Choctaw, Chickasaw, Chero-

kee, Creek and Seminole).

3. How many acres has the Secretary taken into trust dur-

ing the past four years?

For the period 1992 through 1995, the Secretary ac-

cepted title to approximately 215,000 in trust nation-

wide for Indian tribes, and includes acres which were con-

gressionally mandated. This computes to approximately

55,000 acres per year. Because the BIA does not main-

tain records based on the location of the acquired land in

relation to the boundaries of the Indian tribes’ reserva-

tions, we are unable to provide a breakdown of these

acres located on or outside the exterior boundaries of the

reservation.

4. How many acres of land were placed in trust during

1996?

Although the 1996 Annual Report of Indian Lands is in

the process of completion, preliminary figures indicate

IT Be ee

A-3

that during 1996 that the amount of trust land acquisi-

tions are similar to prior years. However, it is important

to point out that approximately 10,000 of the acres

acquired in trust in 1996 were congressionally mandated.

5. How many acres of trust land were removed from trust

status during calendar year 1996?

Although the 1996 Annual Report of Indian Lands is in

the process of completion, preliminary figures indicate

that approximately 130,000 acres lost its trust status and

became subject to state and local taxation. These lands

were lost from trust status due to sales to non-Indians,

individual Indians taking a patent-in-fee on their land

and, thus, removing the trust status, foreclosures on

mortgages of trust land and probates where non-Indians

who are not entitled to hold land in trust have inherited

by law or devise trust land. It should be pointed out that

this acreage loss is only for 1996 as we did not include

acres disposed of out of trust for the previous ten years

because they were not readily available.

6. How many acres during the last ten years have been

taken into trust annually?

The amount has remained fairly stable and averages

approximately 250,000 acres per year. If this amount

were divided equally among the total number of tribes,

approximately 550, each tnbe would have acquired

approximately 450 acres per year. Although Congress-

man Istook refers to Indian tribes in total, we excluded

the Alaska tribes because they had no applications. Their

are approximately 330 Indian tribes in the continental

United States. Each tribe would have to acquire approx-

imately 757 acres per year to meet this average. How-

ever, all tribes do not apply each year, and some tribes

are landless.

A-4

7. How many acres of trust land have been lost between

enactment of the General Allotment Act of 1887 and the

Indian Reorganization Act of June 18, 1934?

Between 1887 and 1934, over 90 million acres passed out

of Indian ownership under the allotment policies of the

General Allotment Act. The increase of the trust land

base of approximately five percent between 1985 to

1996 is minimal when compared to the acres lost to the

state and local taxing jurisdictions during the period

between 1887 and 1934. Trust acres have and will con

tinue to be removed from trust status for the reasons

explained in Question No. 5.

8. What does the 700,000 acres cited in Congressman

Istook’s letter dated June 9, 1997, represent?

In March 1997, Congressman Istook requested the BIA

furnish him with a report on all the fee-to-trust acquisi-

tion applications currently pending before the BIA. The

report reflects the name of the applicant, date the appli-

cation was received by the BIA, tribal affiliation, whether

or not the acquisition is an individual Indian or tribe,

county and state in which the land is located, approxt-

mate acres, and whether or not the land is located on or

off the reservation,

By letter dated May 7, 1997, the BIA furnished Congress-

man Istook the requested report. Information prepared

by the office of Congressman Istook totaled the acreage

figures reflected on the report and made the statement

“The BIA is now placing over 700,000 acres into trust.”

This statement could lead to a mis-impression that all

700,000 acres will automatically be placed in trust. The

acreage figures provided him represents application acres

and not acres accepted into trust. Each fee-to-trust appli-

cation is unique and must be evaluated on its own merits

A-5

and a decision rendered by the Secretary to approve or

disapprove the application based on the criteria found

in 25 CFR 151. The mere act of filing an application

does not in itself mean that the land will be placed into

trust status.

Additionally, the BIA Navajo Area Office reported that

they had no fee-to-trust acquisitions appl’-ations; how-

ever, they did report that they may have “potential’’

acquisitions of approximately 482,015 acres. This figure

was included in Congressman Istook’s report even though

the Navajo Area Office does not have any pending fee-

to-trust acquisition applications. In hindsight, the Navajo

Area Office should have reported no pending fee-to-trust

acquisition; however, in an effort to be responsive to the

congressional inquiry, they submitted the “potential”’

acquisition applications. There is no certainty that these

“potential” acquisitions will come to fruition as appli-

cations.

If you subtract the “potential” acquisitions reported by

the Navajo Area Office, from the nationwide 700,000

acres reported by Congressman Istook, the nationwide

acreage figure drops to approximately 275,000 acres.

When this figure (275,000) is broken down between on

and off reservation, the approximate number of acres

located within the exterior boundaries or “‘on”’ the res-

ervation is approximately one-half of the total.

Preliminary figures for the 1996 Annual Report of

Indian Lands indicate that the BIA disapproved 40 per-

cent of the applications it received. If this disapproval

rate is applied to future applications covering the 275,-

000 acres, then, only approximately 110,000 acres will

be placed in trust.

A-6

PREPARED BY: Bureau of Indian Affairs, Division of

Real Estate Services

DATED: June 20, 1997 (Corrected June 25, 1997)

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.