Amicus Curiae Brief — Michigan v. Environmental Protection Agency

- Supreme Court, &.S.

f FILED

No. 00-746 MAR 12 2001

In The OL PRK

Supreme Court of the United States

oJ

STATE OF MICHIGAN, et al.,

Petitioners,

V.

U.S. ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

S

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The District Of Columbia Circuit

.

BRIEF OF AMICI STATES IN SUPPORT

OF PETITIONERS

.

SusSAN M. McMIcCHAEL FRANKIE Sue Det Papa

(Counsel of Record) Attorney Generai

Special Assistant State of Nevada

Attorney General 100 N. Carson St.

Assistant General Counsel Carson City, NV 89701-4717

1190 St. Francis Drive (775) 684-1113

P.O. Box 26110 Counsel for the

Santa Fe, NM 87502 State of Nevada

(505) 827-0127

Counsel for the New

Mexico Environment

Department

Mark BARNETT

Attorney General

State of South Dakota

JOHN Patrick GUHIN

Deputy Attorney General

500 E. Capitol

Pierre, SD 57501-5070

(605) 773-4504

Counsel for the State of

South Dakota

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

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

Protection Agency (EPA) reasonably defined the term

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

lands, located outside the boundaries of formal reserva-

tions, which are taken into trust for tribes pursuant to the

Indian Reorganization Act (IRA). As a consequence,

tribes are now authorized to redesignate under CAA

§ 164(c) such current and future trust lands to a more

stringent air quality classification, an action that can

override the implementation by a state of its own indus-

trial land use and natural resources management policies,

preclude construction of new industrial facilities, and

impose costly restrictions on the operation of existing

facilities in state lands bordering the redesignated tribal

lands. The court also held that the CAA expressly dele-

gates to tribes authority to adopt air programs for lands

within reservations that are owned in fee by non-Indians

and that were subject to state air quality regulation prior

to the 1990 Amendments to the CAA. The questions

presented are:

1. Whether EPA has the discretion to interpret the CAA

in a manner that expands the lands tribes may redesig-

nate to include IRA trust lands and other lands located

outside of reservations established by treaty, Executive

Order, or Act of Congress.

2. Whether the CAA can be construed as divesting the

states of their sovereign authority by delegating authority

to tribes over non-Indian fee lands previously within the

il

QUESTIONS PRESENTED - Continued

sovereign jurisdiction of a state, when the CAA expressly

provides that no provision therein precludes or denies a

state’s authority to adopt and enforce standards for lands

within its territorial boundaries.

TABLE OF CONTENTS

Page

cee bev ecaeeeeue st i

Table of Authorities .... SEPT s Pre er Per ere iii

Statement Gabe saa aids eed ay 1

Argument ore inenaawess ijabeuwaane ]

Conclusion ee nae 5

iv

TABLE OF AUTHORITIES

Page

Cases

South Dakota v. Department of Interior, 69 F.3d 878

(8th Cir. 1995), vacated and remanded for recon-

gemeration, SIS US. FID CUSPG) . onccncnconcccssscces 4

Village of Ruidoso v. Albuquerque Area Director, IBIA

Dame GAME BG, BOS 5 6 66 5 6c ncn ccaccinescteade 4

STATUTES

Clean Air Act, 42 U.S.C. §§ 7401 et seq.............. 1

af? ES ee er a en nes rns rs 3

wt Ge Pere rr er yere PEEP TTP TTT CT TT ore 2

ee YE FS Se ee 3

i ne os ocak eee kakb ee Sede ane wae wenn 3

oe EE | ey SA SPT el Te Sat Te eae 2

a eR oe oe oe er Or ee en 2

Indian Reorganization Act of 1934, 25 U.S.C.

oe gO Pee ere rere oe re TT eee ree eT Teer ee Ter 1

' Cope oF Feperat REGULATIONS

OP Cee Se ee SORTS bok oie knee cad eweeedenan 3

Ge Ras ee ee CNA ikke pach hddnekeesanas 3

OG Pere Teer eee eee er er errr ry 2

Sy Se hc keke rarddnke pace sereb bar euceess 4

FEDERAL REGISTER

43 Fed. Reg. 26,404 (June 19, 1978)................... 3

61 Fed. Reg. 38,287-288 (July 23, 1996)............... 2

See aaa... aaaae_0-

TABLE OF AUTHORITIES - Continued

Page

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

66 Fed. Reg. 3459 (January 16, 2001)................. 5

66 Fed. Reg. 10,815 (February 20, 2001).............. S)

OTHER

EPA New Source Review Workshop Manual,

C§Coctatan, 1900, G0 Tae i soon scat Gilesecrs cere, 2

STATEMENT

The States of New Mexico, Nevada and South Dakota

(Amici States) urge the Court to grant the writ of certiorari

sought in this case by the State of Michigan and the other

petitioners.

This case presents important issues of critical impli-

cation regarding preservation to the States of their rights

throughout their sovereign lands to design and imple-

ment its general long-term development strategies,

including industrial land use and natural resources man-

agement policies, to further the objectives of the State, its

citizens and inhabitants.

In its decision below, involving federal Indian law

and the Clean Air Act, 42 U.S.C. §§ 7401 et seq. (CAA or

the Act), the D.C. Circuit has fundamentally rearranged

the balance of state and tribal jurisdiction. The court's

unprecedented decision permits tribes to exercise CAA

authority not only over lands that had been formally

established as tribal reservation lands at the time the

CAA was enacted, but also over additional and ever-

accumulating parcels of land taken into trust for the

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

pursuant to the Indian Reorganization Act of 1934, 25

U.S.C. §§ 461 et seq. (IRA).

+

ARGUMENT

Under the CAA, lands were designated as “Class |”,

“Class II”, or “Class III”. An area’s designation estab-

lishes the maximum degree to which concentrations of

various regulated pollutants over baseline levels are per-

mitted to increase in that area. These increases are known

as “increments”. Under CAA § 163(b), the increments for

Class I were made four to 10 times more stringent than

the corresponding Class II increments.

Lands can also be redesignated from Class II to Class

I upon proposition by a State or Tribe. CAA § 7474(a) and

(c). Importantly, CAA § 7474(c) limits Class I redesigna-

tion by a tribe to “[l]Jands within the exterior boundaries

of reservations of federally recognized Indian tribes... . ”

The importance of this provision is magnified by the fact

that Class I redesignation, which establish these very

stringent restrictions on the deterioration of air quality,

are enforceable against sources of pollution both inside

and outside the redesignated area. Redesignation of an

area to Class I not only affects land use and natural

resource policy planning and implementation within the

area being redesignated, but also affects proposed devel-

opment and operations 50 to 80 miles outside those

areas.

1 See, e.g., 40 C.FR. § 52.21(p); EPA New Source Review

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

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

to include all major sources or major modifications which

propose to locate within 100 kilometers (km) of a Class I area.”).

EPA has more recently proposed that permit information

received from sources proposing to locate or to construct a

major source modification up to 250 kilometers (155 miles)

away, be input into a database which can then be accessed by a

Class I tribal air quality manager. See 61 Fed. Reg. 38,287-288

(July 23, 1996)

In 1990 Congress enacted major revisions to the CAA

and directed the United States Environmental Protection

Agency (EPA) to “promulgate regulations . . . specifying

those provisons” of the CAA “for which it is appropriate

to treat Indian tribes as States,” with such treatment of a

given tribe being authorized under the Act “only if”

certain specified conditions are met. CAA § 301(d)(2).

Among other things, the “functions to be exercised” by

the tribe have to “pertain to the management and protec-

tion of air resources within the exterior boundaries of the

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

CAA § 301(d)(2)(B). -

Congress, when it enacted the CAA § 164 redesigna-

tion provisions in 1977, was codifying a prior EPA regula-

tory program that defined the term “reservation” to mean

“any federally-recognized reservation established by

Treaty, Agreement, Executive Order, or Act of Congress.” 40

C.F.R. § 52.21(b)(4)(1974) (emphasis added). As a result of

Congress’s action in 1977, state lands and tribal lands

subject to redesignation were specifically delineated.

States could redesignate all lands outside formal reserva-

tion lands. Tribes could redesignate formal reservation

lands. EPA reaffirmed that understanding in rules the

Agency adopted following passage of the 1977 CAA

Amendments by continuing to define “reservation” to

mean a federally-recognized reservation “established by

Treaty, Agreement, Executive Order, or Act of Congress.”

See 40 C.F.R. § 52.21(b)(15) (1978); 43 Fed. Reg. 26,404

(June 19, 1978).

Despite this apparent limitation on tribal Class I

redesignation to formally established Indian reservations,

EPA promulgated regulations collectively known as the

Tribal Authority Rule (TAR), 63 Fed. Reg. 7254 (February

12, 1998); 40 C.F.R. Part 49, with language that authorizes

tribes to redesignate lands outside formal reservations,

including trust lands that have been established in the

past, or may be created in the future, by the U.S. Secre-

tary of the Interior under the IRA. The U.S. Court of

Appeals for the D.C. Circuit affirmed EPA’s rule based on

an interpretation of the Act that allows tribes to redesig-

nate [RA trust lands. The D.C. Circuit’s decision is con-

trary to congressional intent.

The acquisition by tribes of lands remote from reser-

vations that are then taken in trust under the IRA has

exploded in recent years. As these remote IRA trust lands

proliferate throughout a state, tribal influence and even

control over a state’s land use and natural resources

policy regarding an ever expanding percentage of the

geographical area of the state is possible. Under the D.C.

Circuit’s decision, tribes are now able to threaten use of

their Class I redesignation authority to override state and

local government industrial land use planning decisions,

to restrict operation of existing facilities, to even block

new industrial and residential development, and to other-

wise impact a State’s natural resource policies.

The situation is doubly problematic because of the

aggressiveness of the Department of Interior in taking

land into trust. See generally, South Dakota v Department of

Interior, 69 F.3d 878 (8th Cir. 1995), vacated and remanded

for reconsideration, 519 U.S. 919 (1996). Moreover, under

the Interior Board of Indian Appeals’ interpretation of the

land-into-trust regulations set out at 25 C.F.R. 151, review

of the action of the Department is extremely limited. See,

Village of Ruidoso v. Albuquerque Area Director,

IBIA 96-103-A (April 14, 1998). A new final regulation

regarding trust acquisitions has been issued, see 66 Fed.

Reg. 3459 (January 16, 2001), but has not gone into effect

pending a sixty day review by the incoming administra-

tion. See, 66 Fed. Reg. 10815 (Feb. 20, 2001). In any event,

the new regulation would extend only grossly insufficient

substantive protections to the states and local units of

government and, indeed, purports to create a new vehicle

-— a Tribal Land Acquisition Area - to facilitate the taking

of land into trust for certain tribes. See, 66 Fed. Reg. 3459.

Supreme Court review of the D.C. Circuit’s decision is

thus imperative, if a constitutionally-sound balance

between state and tribal authority is to be restored.

The D.C. Circuit decision allows tribes to take away

from states their exclusive jurisdiction to redesignate

state lands, despite the 1977 Amendments, which explic-

itly grant such authority to the states. Under the D.C.

Circuit decision, once the Secretary of the Interior takes

lands into trust, the tribe, not the state, is then authorized

to redesignate such lands. This is inconsistent with the

Clean Air Act.

CONCLUSION

This Court should not allow the D.C. Circuit decision

affirming and interpreting the TAR to remain intact. If it

does allow the decision to remain intact, states would be

powerless to prevent the accelerating trend of additional

lands, though remote from formal reservations and

located anywhere throughout a state, being placed in -

trust for Indian tribes pursuant to the IRA, and then

being proposed for redesignation to Class I. Because

6

tribal trust lands can be located anywhere throughout a

state, and because tribal Class I redesignations impact

state policy regarding lands up to 80 miles outside the

immediate Class I land area, the current tribal Class I

redesignation trend would force states, against their will

and despite prior long-term development strategies, to

reconcile the stringent Class I requirements with their

industrial land use and natural resource management

policies and practices regarding vast areas of a state, and

in some cases, potentially encompassing the entire state.

In sum, if the TAR remains in tact, a state’s ability to

direct its future development and realize its citizens’

goals, would be dramatically diminished.

For these reasons and the reasons stated in the Peti-

tion of the State of Michigan, et al., the petition for writ of

certiorari should be granted.

Respectfully submitted,

SusAN M. McMicHaet FRANKIE SUE Det Para

(Counsel of Record) Attorney General

Special Assistant Attorney State of Nevada

General 100 N. Carson St.

Assistant General Counsel Carson City, NV 89701-4717

1190 St. Francis Drive (775) 684-1113

P.O. Box 26110 Counsel for the

Santa Fe, NM 87502 State of Nevada

(505) 827-0127

Counsel for the New Mexico

Environment Department

Mark BARNETT

Attorney General

State of South Dakota

JOHN Patrick GUHIN

Deputy Attorney General

500 E. Capitol

Pierre, SD 57501-5070

(605) 773-4504

Counsel for the

State of South Dakota

eS