# Opposition Brief — Michigan v. Environmental Protection Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1310%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2001 - **Citation:** 532 U.S. 970 ## Text Supreme Court, U.S. @ FILED No. 00-7 IN THE SUPREME COURT OF THE|UNITEDISERTES ‘se : 4 STATE OF MICHIGAN, et al., Petitioners, v. 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? l. i) (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 os 10 1] (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 Zz Pd i tt a AS ERD Mp CME Bi AE et eS A coohd tiles ‘“ elias o MY Fath eR Ain ti Nae De 1 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- i 2 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 3 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] LL 5 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 6 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). a 7 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.° © Fact Sheet issued by the Bureau of Indian Affairs, Division of Real Estate Services, June 25, 1997 (“BIA Fact Sheet”) at 3, Respondents’ Appendix (“‘R.App.”) at A-1, A-5. 8 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. 9 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. 10 I. 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. | 1] 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. 12 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 a 13 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 (c) all Indian allotments, the Indian titles to which 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] 14 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). 15 125. 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). 16 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- 17 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. 18 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 19 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. 20 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. 21 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